[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Rules and Regulations]
[Pages 47128-47151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23789]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1 and 3
[Docket No. 93-076-10]
RIN 0579-AA59
Animal Welfare; Marine Mammals, Swim-With-the-Dolphin Programs
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Animal Welfare regulations to establish
standards for ``swim-with-the-dolphin'' interactive programs. These
standards are being promulgated under the authority of the Animal
Welfare Act and are necessary to ensure that the marine mammals used in
these programs are handled and cared for in a humane manner.
EFFECTIVE DATE: October 5, 1998.
FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,
MD 20737-1228, (301) 734-7833.
SUPPLEMENTARY INFORMATION:
Background
Under the Animal Welfare Act (7 U.S.C. 2131 et seq.) (AWA),
Congress authorized the Department of Agriculture to promulgate
regulations and standards for the humane handling, care, treatment, and
transportation of captive marine mammals by regulated entities. The AWA
regulations are contained in title 9 of the Code of Federal
Regulations, chapter I, subchapter A, parts 1, 2, and 3. Part 1
provides definitions of terms used in parts 2 and 3. Part 2 is
designated as ``Regulations,'' and part 3 is designated as
``Standards'' for the humane handling, care, treatment, and
transportation of covered animals by regulated entities. Subpart E of
part 3 contains the standards applicable to marine mammals.
On January 23, 1995, we published in the Federal Register (60 FR
4383-4389, Docket No. 93-076-2) a proposal to amend the regulations by
establishing standards for ``swim-with-the-dolphin'' (SWTD) programs in
a new Sec. 3.111.
We solicited comments concerning our proposal for an initial
comment period of 30 days ending February 22, 1995, followed by three
extensions ending March 24, 1995 (see 60 FR 10810, Docket No. 93-076-4;
60 FR 12908, Docket No. 93-076-5; and 60 FR 15524-15525, Docket No. 93-
076-6).
Comments Received on the SWTD Proposed Rule
From January 23, 1995, the date the comment period on proposed rule
Docket No. 93-076-2 opened, until March 24, 1995, the final close of
the comment period, we received a total of 22 comments. They came from
exhibitors, exhibitor associations, animal protection organizations,
Federal agencies, and other members of the public. The comments are
discussed below by topic.
In this final rule, we are establishing regulations and standards
for the humane handling, care, and treatment of cetaceans used in SWTD
programs. These regulations and standards address space requirements,
veterinary care, personnel and handling requirements, and
recordkeeping.
We are amending the definition we proposed for ``Swim-with-the
dolphin (SWTD) program'' to substitute the word ``cetacean'' for
``dolphin'' in the first sentence and throughout this final rule,
except in the generally accepted name of these interactive programs. We
consider the term cetacean to more accurately describe the types of
marine mammals that may be used in SWTD programs. For consistency's
sake, in the preamble of this final rule, we use the term cetacean in
discussing the comments submitted by the public. We consider such use
to be consistent with the intent of the issues raised.
Opposition to SWTD Programs
One commenter opposed SWTD programs because of what the commenter
saw as the risk of zoonotic diseases being transmitted to the cetaceans
from humans. The commenter stated that because cetaceans tend to mask
signs of illness, they do not lend themselves to efficient diagnosis,
and, therefore, are unsuited to captivity.
The issues raised by the commenter, those of whether cetaceans
should be used in SWTD programs, and whether cetaceans should be kept
in captivity at all, transcend the scope of the proposed rule. The rule
as proposed was predicated on the assumption that marine mammals will
continue to be used in interactive programs. The proposed provisions
were intended to address the regulatory needs of the specialized
captive display SWTD programs, so that the animals used in the programs
are treated in a humane manner. The statement that cetaceans tend to
mask signs of illness as long as possible can be made for many species.
However, competent use of behavioral and feeding observations, and
preventive and therapeutic veterinary medical programs of care, can and
do provide adequate information and a strong basis for efficient
medical diagnosis and treatment. Therefore, we are making no changes to
the final rule based on this comment.
One commenter stated that no new SWTD programs should be approved
until APHIS has independent, trained observers conduct a long-term
continuous study on all aspects of human/cetacean interaction.
Prior to the reauthorization of the Marine Mammal Protection Act
(MMPA) and the cessation of SWTD program oversight by the National
Marine Fisheries Service (NMFS), U.S. Department of Commerce, NMFS
commissioned an independent study of the SWTD programs operating at
that time. The results of that study, submitted to NMFS in 1994, and
[[Page 47129]]
published in the journal Marine Mammal Science, 1 were
considered in the development of the proposed rule. APHIS has concluded
that commissioning another such study would be duplicative and not cost
efficient, and would pose an unnecessary delay in the development of
the rule. Therefore, we are making no changes to the final rule based
on this comment.
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\1\ Amy Samuels and Trevor R. Spradlin, ``Quantitative
Behavioral Study of Bottlenose Dolphins in Swim-with-the-Dolphin
Programs in the United States,'' Marine Mammal Science, 11(4), 1995,
pp. 520-544.
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One commenter recommended that SWTD programs be classified as
``experimental'' until review of current and future information
warrants the designation of permanent status. The commenter stated that
this approach could include setting specific dates for future
programmatic review and reconsideration of permanent status.
The granting of ``experimental'' or temporary licenses is outside
the authority of APHIS under the AWA, and we are making no changes to
the final rule based on this comment.
Public Involvement in Development of the Proposed Rule
One commenter stated that it was ``offensive and inequitable'' that
no input was sought from animal welfare groups in the development of
the proposed rule. Another commenter objected to what the commenter
termed ``industry conflict of interest'' because our proposal stated
that the proposed minimum space requirements were developed ``in
conjunction with professional industry organizations.''
APHIS has conducted this rulemaking in accordance with the
Administrative Procedure Act (APA) and other applicable laws and
executive orders. As stated in the preamble of the proposed rule, APHIS
developed the proposed rule using several sources of information. This
information was in APHIS's possession at the time the proposed rule was
developed. Comments were not solicited from specific groups or
organizations during development of the proposal. Following publication
of the proposed rule, APHIS provided for an adequate public comment
period to provide all interested parties the opportunity to support,
oppose, recommend changes, or to otherwise comment on the proposed
rule.
One commenter recommended that APHIS publish an interim rule
establishing SWTD regulations until a final rule could be published.
APHIS examined the possibility of publishing an interim rule. However,
it was determined that this would not be the best regulatory approach.
As noted above, by conducting proposed rulemaking rather than
publishing an interim rule, APHIS provided the public an opportunity to
comment on and recommend changes to the SWTD standards prior to their
being made effective.
Need for SWTD Regulations
One commenter stated that, unless APHIS can show that the current
regulations are harming animals, the Agency should not say in the
preamble of its proposed rule that the rule is necessary to ensure the
humane care of program animals.
Until this final rule becomes effective, APHIS does not have in
place specific standards that address the special considerations of
SWTD programs. The reference in the proposed rule to the need for
standards was not intended as a judgment concerning the currently
operating programs. However, it was intended to emphasize the need to
implement regulatory provisions that specifically address AWA issues
with regard to these specialized captive display facilities.
Several commenters stated that establishing regulations
specifically for SWTD programs, in addition to those regulations
already established regarding marine mammals, was arbitrary and
redundant. One commenter stated that standards for SWTD programs should
be the same as for any marine mammal facility, except in what the
commenter termed ``rare'' instances where SWTD facilities are
necessarily different from other facilities. Several commenters stated
that facilities with existing SWTD programs have already established
standards for those programs and, therefore, that specific U.S.
Department of Agriculture (USDA) standards for such programs are
unnecessary.
We consider the special circumstances of SWTD programs, both for
the cetaceans involved and the people who participate in them, to
require specific regulatory language. The regulations promulgated in
this final rule address the humane care and maintenance of marine
mammals used in these specialized programs, and we consider them
necessary to ensure the marine mammals' continued well-being.
SWTD Program Definitions
A number of commenters commented on the proposed definition of
swim-with-the-dolphin (SWTD) program that was set forth in Sec. 1.1 of
the proposed rule.
One commenter expressed concern that the proposed definition of
SWTD programs excluded those programs where members of an audience
participate as a minor segment of an educational show. The commenter
said the meaning of ``minor'' was unclear, and that whenever members of
the public enter the water with the ability to ``swim'' with marine
mammals, the activity should be regulated.
The use of audience participation as a segment of any presentation,
educational or otherwise, is an integral component of the presentations
at many regulated marine mammal facilities. The proposed rule was not
meant to include such presentations where a member of the public enters
the primary enclosure to pet, feed, or issue a behavioral command to
the animal(s) as part of such a performance. Since presentations vary
greatly from facility to facility, it would be inappropriate to
strictly define ``minor,'' and we do not do so in this final rule. SWTD
programs are programs that have been designed with the primary purpose
of having members of the public interact with the animals in the water
by swimming (this includes wading, scuba diving, and snorkeling). This
rule has been developed to address the special needs of such programs.
One commenter stated that no facility that conducts shows or
performances of any kind should be allowed to conduct SWTD sessions,
because such shows cause additional unnecessary stress for cetaceans.
APHIS is unaware of any valid scientific research or other
information that documents or supports that performances, as referred
to above, cause additional unnecessary stress for the animals. We are
not aware of any scientific or other reason to restrict such a program,
and we are making no changes to the final rule based on this comment.
Several commenters recommended that the proposed definition of
swim-with-the-dolphin (SWTD) program be revised to mean [with the
commenters' suggested additions italicized; suggested deletions
bracketed] any human-cetacean interactive program in which a member of
the public enters the primary enclosure in which an SWTD designated
cetacean is housed [to interact with the animal] for the purpose of
swimming, snorkeling, or scuba diving with the cetacean. The commenters
recommended that this exclude, but such exclusion not be limited to,
feeding and petting pools and the participation of any member(s) of the
public audience as a [minor] segment of [an educational] a presentation
of a show. The commenter
[[Page 47130]]
stated that this revision would make clear that ``swimming'' with the
animal is the key to an SWTD session. According to the commenter,
removing the words ``minor'' and ``educational'' in describing
exclusions to the definition, and referring only to SWTD-designated
cetaceans, would clarify the scope of the programs regulated. Another
commenter recommended that ``swim'' be clarified to mean ``immersed in
water.''
Our intent was to make the definition of SWTD programs as clear as
possible without being so restrictive that future activities that would
need to be regulated as SWTD programs are excluded. After reviewing the
comments on the definition of SWTD programs, APHIS has incorporated
language that we believe addresses the concerns raised by the
commenters without being unduly narrow in definition. Accordingly, we
are defining swim-with-the-dolphin (SWTD) program to mean any human-
cetacean interactive program in which a member of the public enters the
primary enclosure in which an SWTD designated cetacean is housed to
interact with the animal. This interaction includes, but such inclusion
is not limited to, wading, swimming, snorkeling, or scuba diving in the
enclosure. This interaction excludes, but such exclusion is not limited
to, feeding and petting pools, and participation of any member(s) of
the public audience as a minor segment of an educational presentation
or performance of a show.
One commenter recommended that the definition of swim-with-the-
dolphin (SWTD) program be expanded to specify that the regulations
apply to all programs involving swim encounters with cetaceans,
including ``therapy'' programs.
The regulations and standards apply to all facilities that engage
in activities for which a license or registration is required under the
AWA. At present there may be private therapy programs that are not
licensed or registered under the AWA. APHIS cannot enforce AWA
regulations and standards at facilities that are not required to be
licensed or registered under the AWA. Any SWTD programs that engage in
activities for which a license or registration is required under the
AWA are subject to this final rule.
In various places in the proposed regulations, we used the word
``interactive'' to describe sessions or areas where SWTD activities are
carried out. Several commenters recommended that the term
``interactive'' be replaced with ``swim-with-the-dolphin'' to avoid
confusion with other programs referred to as ``interactive.''
We do not agree that there would be confusion over the use of the
term ``interactive.'' In reviewing its use throughout the rule, we do
not find an instance where switching to the term ``swim-with-the-
dolphin'' would clarify the meaning. The terms ``interactive area'' and
``interactive session'' are defined in Sec. 1.1. Additionally,
Sec. 3.111 is entitled ``Swim-with-the-dolphin programs.'' There should
be no reasonable confusion over the terminology used. Therefore, we are
making no changes to the final rule based on this comment.
Types of Cetaceans Used in SWTD Programs
Under Sec. 3.111(d), APHIS proposed that only Tursiops truncatus
may be used in SWTD programs. Several commenters objected to this
provision, stating that there is no scientific justification for
limiting SWTD programs to Tursiops truncatus, and that experience has
shown that other cetaceans can be trained and conditioned to take part
in such interactive swimming programs.
At the time the proposed rule was published, APHIS believed that
the only animals in use in SWTD programs in the United States were
Tursiops truncatus. This information was incorrect and, therefore, this
final rule addresses the use of varied species of cetaceans in SWTD
programs. Of the approximately 88 species of cetacea, 35 species have
been or currently are being maintained in U.S. aquaria and zoos. While
many species may never be considered for inclusion in SWTD programs,
based on temperament, difficulty in maintaining them in captivity,
conservation and breeding considerations, etc., individual
representatives of a species may be suitable for inclusion in a SWTD
program.
We are amending Sec. 3.111(d) to read: Program animals: Only
cetaceans that meet the requirements of Sec. 3.111(e)(2) and (3) may be
used in SWTD programs. We believe that this provision will provide
safeguards on the animals used in SWTD programs, while providing
flexibility to facilities in choosing which animals to use. As long as
a cetacean is adequately trained and conditioned in human interaction,
and is in good health, it may be used in an SWTD program. All program
animals are subject to removal (temporary or permanent) from a SWTD
program if they exhibit unsatisfactory, undesirable, or unsafe
behaviors (Sec. 3.111(e)(8) in this final rule). Section 3.111(e)(3) is
a new section added to clarify that all animals used in SWTD programs
shall be in good health.
Several commenters took issue with the statement in our proposal
that industry experience has demonstrated that Tursiops truncatus can
be adequately trained and conditioned to interact safely with humans,
stating that this conclusion has not been definitively proven by any
report issued to date. The commenters stated that injuries have
occurred in both petting pools and hands-on interactive sessions.
The statement in the preamble of the proposed rule concerning the
training and conditioning of Tursiops truncatus to interact safely with
humans was not meant to imply that no injuries had ever occurred, only
that the incidence of injuries in SWTD programs has been low. According
to NMFS statistics during the years of their oversight (1989 to April,
1994) of these programs, there were approximately 14 reported injuries
during 166,615 encounters (individuals participating in SWTD sessions).
Using these statistics, the overall injury rate was less than 0.01
percent, with yearly rates varying between 0 percent and 0.03 percent.
It can be inferred that injuries caused by human-cetacean interaction
during SWTD sessions occur at an extremely low rate, and that these
interactions are relatively safe.
Several commenters recommended that the animals used in SWTD
programs be limited to those that are ``captive-born,'' stating that
sufficient numbers of Tursiops breed in captivity, and that captive-
born animals are more tractable.
It is beyond the scope of the AWA to restrict the activities of a
licensee or registrant who is in compliance with the AWA and the
regulations and standards. In addition, we believe that the final rule
contains adequate safeguards that will ensure that animals which are
aggressive or display inappropriate behavior will not be used in SWTD
programs. We are not making any changes to the final rule based on this
comment.
Handling Requirements and SWTD Enclosure Areas
Proposed Sec. 3.111(a) provided that the primary enclosure for SWTD
cetaceans must contain an interactive area, a buffer area, and a
sanctuary area, and that movement of cetaceans into the buffer or
sanctuary area must not be restricted. Several commenters expressed
their support for this requirement. Several commenters recommended that
the regulations also provide that there be no verbal or nonverbal
reprimands to cetaceans going to the buffer area, that there be
[[Page 47131]]
full rations in timely fashion even to cetaceans choosing not to take
part in the programs, and that, in general, stronger language be added
to make clear that movement into or use by the cetaceans of the buffer
or sanctuary area shall not be restricted in any way. Another commenter
recommended that the regulations specifically state that the buffer or
sanctuary areas may not be intentionally or inadvertently uninviting to
program cetaceans.
Handling requirements for all animals are found in Sec. 2.131.
Specifically, in Sec. 2.131(a)(2)(ii), the issues of withholding of
food are addressed. This regulation prohibits deprivation of food or
water in training, working, or other handling. However, the regulations
allow for the short-term withholding of food or water from animals by
exhibitors, as long as each of the animals affected receives its full
dietary and nutrition requirements each day. (emphasis added). Because
a regulation addressing the issue of full rations for all animals is
already in effect, it is not necessary to promulgate additional
language in this final rule.
In the Supplementary Information section of the proposed rule, the
issue of unrestricted movement by the cetaceans into the buffer and/or
sanctuary area, as well as the intent of the rule to provide that the
designated enclosure areas are not made intentionally uninviting to the
animals, was addressed. APHIS wishes to clarify the use of the word
``uninviting'' as used in this rule. ``Uninviting'' means that the area
is less attractive to the animal for whatever reason. Examples of
conditions that may make a certain area ``uninviting'' to a program
animal include, but are not limited to, loud background or other noise,
unappealing substrate, different lighting patterns, or uncomfortable
water temperature. In this final rule, we are adding language to
clarify this intent, by amending Sec. 3.111(a) to provide, in part,
that the primary enclosure for SWTD cetaceans must contain an
interactive area, a buffer area, and a sanctuary area, that none of
these areas shall be made uninviting to the animals, and that movement
of the cetaceans into the buffer or sanctuary area must not be
restricted in any way.
The intent of the proposed regulations, among other things, was to
provide for a sanctuary area that the program animals may choose to use
at any time. The buffer area was not intended to be used as an extra
sanctuary area. We consider it acceptable for the program animals to be
recalled from the buffer area. However, the cetaceans must have the
option of either returning to the interactive area or ignoring the
recall command, by staying in the buffer area or moving to the
sanctuary area. To emphasize that the animals are not to be recalled
from the sanctuary area during an interactive session, we are amending
Sec. 3.111(e)(6) as proposed (redesignated as paragraph (e)(7) in this
final rule) to provide, in part that each SWTD program must limit
interaction between cetaceans and humans so that the interaction does
not harm the cetaceans; does not remove the element of choice from the
cetaceans by actions such as, but not limited to, recalling the animal
from the sanctuary area; and does not elicit unsatisfactory,
undesirable, or unsafe responses from the cetaceans.
One commenter stated that the regulations should specify that
cetaceans that are ``resting'' should not be kept in isolation from
their conspecifics (members of the same species). Another commenter
recommended that facilities be required to have at least two cetaceans
resting at the same time.
It is the intent of the standards set forth in Sec. 3.109 of the
current regulations that no marine mammal be kept in isolation without
medical or compatibility justifications. Under the proposed rule, given
the restrictions on public interaction times and the requirement for
enclosure design and availability of all areas (interactive, buffer,
and sanctuary) to program animals at all times, it seems highly
unlikely that any active program animal will be kept in isolation from
conspecifics for other than justifiable medical reasons. Therefore, we
do not consider it necessary to make any changes to the final rule
based on these comments.
Two commenters recommended that the regulations include language
that states: ``Construction and configuration of the interactive,
buffer, and sanctuary areas should be similar in design and consistent
in location. Redesign or reconfiguration of these areas should not be
undertaken without prior authorization by the Administrator.'' The
commenters stated that such requirements would help ensure that
cetaceans would be equally comfortable in the sanctuary area and the
interactive area.
The proposed rule included the requirements that the buffer and
sanctuary area each offer at least as much space as the interactive
area, that movement be unrestricted, and that the animals not be
recalled from the sanctuary area during an interactive session. We
consider the revision to Sec. 3.111(a) in this final rule, discussed
above in response to concerns about space requirements, to adequately
address the issues raised by the commenters. We do not consider it
necessary to oversee enclosure changes that comply with the
regulations.
A number of commenters supported the proposed requirements for the
three areas and for their minimum size. Several commenters objected to
the requirement for a buffer area in an SWTD program. One commenter
stated that forcing an existing facility to divide one interactive area
into three areas may be impracticable, would result in a small area for
interaction, and would penalize those facilities that do not use food
to lure cetaceans. One commenter recommended that, in place of a buffer
zone, a 2:1 human participant-to-cetacean ratio be established, and
space requirements be based on the following calculations: Program
cetaceans would be provided with over half the available surface area
that is not within 2 meters of any swimming human (assuming that all
swimmers are maximally dispersed--i.e., not within 2 meters of each
other).
The intent of the buffer area is to allow the animals to leave the
interactive area, but still be recalled, as well as provide a buffer
zone from human contact during sessions. Because the rule requires the
interactive sessions to be controlled swims, the animals will be under
the direction of the trained personnel, and it will be up to the
behaviorists to determine if food or other reinforcement measures are
used to reward the animals.
With regard to calculating required space (surface area) as
recommended by the commenter in lieu of a buffer zone, we consider the
method recommended by the commenter to be unduly complicated, and
subject to the hypothetical placement of humans during a session. In
addition, no justification for or advantages of this proposed method
were offered. Therefore, we are making no changes to the final rule
based on this comment.
One commenter supported the concept of requiring a buffer zone
between the interactive area and the sanctuary area, but objected to
the requirement that it be the same size as the sanctuary area. The
commenter stated that, with the buffer zone and the sanctuary area
being the same size, two-thirds of the pool would be a cetaceans-only
area. Conversely, several other commenters stated that, although
captive cetaceans may swim away from human swimmers in designated
refuge areas, humans still remain in close proximity to them. To help
reduce the stress to cetaceans, the commenters
[[Page 47132]]
recommended that the buffer and sanctuary areas be at least three times
larger than the interactive area.
The need for three areas within the enclosure for SWTD cetaceans
has been discussed above, as has the rationale for requiring the areas
to be equivalent in size and acceptability to the cetaceans. Requiring
a sanctuary and buffer area to be at least three times the interactive
area would place an undue burden on the facilities, and would require
some existing programs to terminate sessions for lack of required
space. Further, no documented evidence of the necessity for such
expansive sanctuary or buffer areas has been presented to APHIS.
Therefore, we are making no changes to the final rule based on this
comment.
One commenter stated that, in addition to the three areas proposed,
each SWTD facility should have a fourth area for cetaceans that are
resting, to keep the cetaceans from the interactive area during their
resting period. The commenter recommended that the resting area have
the same minimum requirements as the other three areas, in case it is
used for cetacean retraining.
Because the sanctuary area will provide the cetaceans with an area
from which they cannot be recalled during an interactive session, we
consider a fourth area of equal proportion to be duplicative and to
place an unnecessary space burden on the facility, and are not
requiring such an area in this rule. There are more economical means
available at most facilities housing marine mammals (i.e., holding
pools, other enclosures, etc.) To handle animals that should not be
participating in a given session.
Swimmer-to-Cetacean and Swimmer to Attendant Ratios
In Sec. 3.111(e)(3) as proposed (redesignated in this final rule as
paragraph (e)(4)), we provided that neither the ratio of human
participants to cetaceans in an SWTD session, nor the ratio of human
participants to attendants, may exceed 3:1. In the explanatory
information to our proposal, we stated that these ratios were based on
permit requirements established by NMFS as part of its regulation of
SWTD programs.
A number of commenters opposed the proposed 3:1 ratio for both
swimmers to cetaceans and human participants to attendants. Several
commenters stated that the ratio of swimmers to cetaceans set forth in
the NMFS regulations was 2:1, and supported that ratio. Several
commenters recommended that the allowable ratio of swimmers to
cetaceans be 1:1. One of these commenters stated that at a 2:1 ratio,
high risk behaviors were observed during SWTD programs. Several
commenters stated that, if only controlled swims (discussed below) are
allowed, the maximum ratio of swimmers to cetaceans should be 4:1.
One commenter stated that NMFS did not specify a required human
participant-to-attendant ratio, but that under NMFS regulations, all
sessions had to be supervised by at least two attendants. One commenter
stated that there should be at least one attendant for each two
participating swimmers. Another commenter recommended no more than a
1:1 ratio for human participants to attendants in the water, attendants
in the water to cetaceans, and attendants in the water to human
participant-cetacean pairs.
We consider that the two 3:1 ratios proposed allow for adequate
supervision of SWTD sessions under normal circumstances, without
imposing an undue burden on SWTD facilities, and are, therefore, making
no changes to the final rule based on these comments. Although we
stated in the explanatory information of the proposed rule that the
proposal was based on pre-existing NMFS permit conditions for programs
prior to April 1994, we did not intend to imply that the precise permit
conditions were set forth in the proposed rule. We regret any confusion
the explanatory wording may have caused.
One commenter stated that, if cetaceans enter the buffer area or
the sanctuary area for an extended period of time, human participants
should be removed from the interactive area to maintain the allowable
human-to-cetacean ratio.
To achieve compliance with the required human participant-to-
cetacean ratio, a facility may need to address what measures would be
taken to assure that the maximum ratio will not be exceeded if a
cetacean leaves the interactive area. Although this contingency may
have been implied in the proposed rule, we believe there is merit in
including specific language in the final rule. The methods of complying
with the handling requirements are left to the discretion of the
facility. Therefore, we are amending Sec. 3.111(e)(7) (redesignated as
paragraph (e)(8) in this final rule), which specified the information
that an SWTD facility must provide in a description of the program, to
include the protocol for maintaining compliance with the required human
participant-to-cetacean ratio if an animal is removed from or leaves
the interactive and buffer area during an interactive session.
SWTD Personnel Requirements
In proposed Sec. 3.111(c), we set forth proposed minimum
requirements for personnel at an SWTD program. We proposed that each
program must have at least a licensee or manager, a primary
behaviorist, a supervising attendant, and an attending veterinarian,
and we described the minimum qualifications for each position. One
commenter recommended that the regulations require an SWTD program to
have at least one attendant for every two cetaceans. The commenter also
recommended that the supervising attendant should have at least 3 years
experience with SWTD programs and the operant conditioning of cetacean
in such programs.
The proposed rule required at least one attendant for every three
human participants in an interactive session. It also required at least
two attendants per session. Compliance with each of these requirements
would ensure that the commenter's recommended ratio of at least one
attendant per two cetaceans will be met and exceeded. Allowing only one
attendant per two cetaceans would mean that one attendant would need to
supervise two areas of activity and up to six humans. We do not
consider this to be in the best interests of safety for the animals or
the human participants. In light of the training and experience
requirements for other personnel, we do not consider it necessary to
require comparable training experience for the supervising attendant.
Therefore, we are making no changes to the final rule based on this
comment.
One commenter stated that because proposed Sec. 3.111(e)(5)
(redesignated as paragraph (e)(6) of this final rule) requires each
session to have at least two attendants, such a personnel requirement
should be included along with the other personnel requirements in
Sec. 3.111(c)(3).
Handling requirements are found in Sec. 3.111(e) as proposed. We
consider it appropriate to include with the handling requirements the
requirement that at least two attendants be present during an
interactive session. We do not consider it necessary or appropriate to
include that requirement in Sec. 3.111(c), cited by the commenter,
because that paragraph deals with personnel qualifications and overall
staff requirements.
One commenter stated that the regulations should require that the
supervising attendant have 3 years experience within the past 5 years.
Another commenter, while opposing the inclusion of specific personnel
[[Page 47133]]
qualifications in the regulations, recommended that, if qualifications
are included, they should include a recent time frame within which a
person must have had experience that qualifies them for a given
personnel designation. The commenter recommended that the following
personnel requirements be added to the regulations in place of those
proposed:
Experienced head trainer: At least one full-time staff member with
at least 6 years experience in training cetaceans for SWTD behaviors,
or with an equivalent amount of experience involving in-water training
of cetaceans, who serves as the head trainer for the SWTD program. The
required experience must have been obtained within the last 10 years.
Experienced qualified trainer: At least one full-time staff member
with at least 3 years experience involving human/cetacean interactions.
The required experience must have been obtained within the last 5
years.
Attendants or employees: The experienced qualified trainer, in
consultation with the experienced head trainer and/or licensee or
manager, may designate other adequately trained attendants or employees
from the licensee's staff to conduct and monitor individual SWTD
program sessions consistent with the regulations.
Attending veterinarian: At least one staff or consulting
veterinarian who was graduated from an accredited college of veterinary
medicine and is licensed to practice veterinary medicine.
As proposed, Sec. 3.111(c), ``Employees and Attendants,'' sets
forth minimum experience requirements for SWTD personnel. We agree that
the names recommended by the commenter represent titles more consistent
with those used elsewhere in the industry, without affecting the intent
or implementation of this rule. For the purposes of this document, the
required positions will be referred to as licensee/manager, head
trainer/behaviorist, trainer/supervising attendant, attendant, and
attending veterinarian.
We agree that the key personnel position of head trainer/
behaviorist must be held by an individual knowledgeable of up-to-date
training and handling techniques and behavioral training theories. This
person will hold major responsibility for the training programs for the
animals and the implementation of the SWTD program, and will have
supervisory responsibilities over the other trainers and attendants.
This final rule will require that the 6 years of experience required of
the head trainer/behaviorist have been obtained within the previous 10
years. With this provision, we do not consider it necessary to specify
the time period for the experience for the licensee/manager, trainer/
supervising attendant, and attendants, as long as these personnel meet
the experience and training requirements set forth in this rule.
We agree that including a requirement for the training of the
attendants will serve to clarify the intent of the regulations, that of
providing adequately and appropriately trained staff participating in
interactive sessions and providing for the safety of the cetaceans and
the human participants within reasonably expected limits. Therefore, we
are adding such a requirement at Sec. 3.111(c)(4).
With respect to the criteria recommended by the commenter for the
attending veterinarian, the AWA is not intended to supersede any State
Board of Veterinary Medicine. While requiring that the attending
veterinarian be licensed to practice veterinary medicine is an
acceptable clarification of the requirements, and we are adding such a
clarification in this rule, most State licensing boards have provisions
for licensing foreign graduates and/or graduates from non-accredited
veterinary schools. We are, therefore, not including a requirement that
the attending veterinarian have been graduated from an accredited
college.
One commenter stated that, although proposed Sec. 3.111(c)(4) would
require the attending veterinarian at an SWTD facility to have had at
least the equivalent of 2 years' full-time experience with cetacean
medicine, the word ``equivalent'' is not defined. The commenter stated
that the lack of such a definition makes the regulatory requirement
virtually meaningless.
The requirement for ``at least the equivalent of 2 years full-time
experience with cetacean medicine within the past 10 years'' was
intended to mean that, although it is not required that the attending
veterinarian work as a full-time marine mammal veterinarian for at
least 2 years, he or she must have the equivalent in experience (at
least 4,160 hours of actual marine mammal medicine work). We are,
therefore, amending the definition of attending veterinarian to clarify
this intent.
In this final rule, we are amending Sec. 3.111(c) to require that
each SWTD program have, at the minimum, the following personnel, with
the following minimum backgrounds (each position must be held by a
separate individual, with a sufficient number of attendants to comply
with Sec. 3.111(e)(4)). We are also amending Sec. 3.111(c)(4) of this
final rule to clarify our intent concerning the training of attendants.
1. The licensee or manager must be at least one full-time staff
member, with at least 6 years experience in a professional or
managerial position dealing with captive cetaceans.
2. The head trainer/behaviorist must be at least one full-time
staff member with at least 6 years experience within the past 10 years
in training cetaceans for SWTD behaviors, or an equivalent amount of
experience involving in-water training of cetaceans, who serves as head
trainer for the SWTD program.
3. The trainer/supervising attendant must be at least one full-time
staff member with at least 3 years training and/or handling experience
involving human/cetacean interaction programs.
4. An adequate number of attendants at a facility must be
adequately trained in the care, behavior, and training of the program
animals. Attendants shall be designated by the trainer, in consultation
with the head trainer/behaviorist and licensee/manager to conduct and
monitor interactive sessions in accordance with Sec. 3.111(e).
5. The facility must have an attending veterinarian, who is at
least one staff or consultant veterinarian with at least the equivalent
of 2 years full-time experience (4,160 or more hours) with cetacean
medicine within the past 10 years, and who is licensed to practice
veterinary medicine.
One commenter recommended that the regulations require that the
experienced head trainer or experienced qualified trainer be on-site at
all times while in-water SWTD program sessions are in progress.
We do not consider this recommended change to be necessary. If
attendants are required to be adequately trained to conduct and monitor
an SWTD session, as discussed above, and all other handling and
personnel requirements are met, it should not be necessary to require
that specific additional personnel be present during the session.
One commenter stated that it was not clear from the proposal
whether only the facility personnel required by the regulations could
conduct an SWTD program, or whether it would be required merely that
one of the personnel be on-site during operation of all SWTD sessions.
The commenter recommended the latter. The commenter also recommended
that the regulations allow the manager and primary behaviorist to be
the same person.
The intent of the proposed rule was that only qualified personnel
could conduct the sessions. Given the
[[Page 47134]]
requirements discussed above, this will include adequately trained
attendants, as well as the designated trainers. It is not the intent of
the rule to specify the work schedule of individual facilities. No
evidence has been presented to support the need for all personnel to be
available during a session.
The intent of requiring the manager and the head trainer/
behaviorist to be separate people is to minimize the potential conflict
of interest between the business aspect of the facility and the welfare
of the animals. The designations and requirements were developed to
provide safeguards for the protection of the animals. Therefore, we are
making no changes to the requirement that these positions be kept
separate.
One commenter recommended that the regulations require that all
attendants have at least 3 years experience with SWTD programs. The
commenter recommended that, to promote this goal, an apprenticeship
program should be established that requires on-site supervision at all
times by a qualified attendant of any attendant who does not have the
required experience.
It is not within APHIS's jurisdiction to establish such an
apprenticeship program, nor to require participation in such a program.
Several commenters recommended that the background requirements for
supervising attendant under proposed Sec. 3.111(c) be made more
specific. One commenter stated that, overall, the proposed personnel
requirements contain only general background, experience, and exposure
elements. The commenter recommended that the regulations set forth
certified job descriptions; explicit skill, knowledge, education,
experience, and training levels; formal credential requirements; and
valid performance tests to demonstrate the hands-on abilities of
applicants.
We cannot tell from the comments what specific requirements the
commenters had in mind with regard to supervising attendants. As noted
above, we have amended proposed Sec. 3.111(c) to clarify our intent
regarding the background requirements for SWTD program personnel.
With regard to personnel requirements overall, we consider the
personnel requirements as set forth in this final rule to provide
adequate minimum standards for personnel engaged in SWTD programs. The
requirements for uniform job descriptions recommended by the commenter
could potentially impose an undue burden on the licensees.
One commenter stated that requirements for employees and attendants
should specifically require knowledge and experience in ``operant
conditioning'' of animals using positive reinforcement techniques.
At this time, we do not have sufficient supporting scientific
evidence to warrant requiring a given training system, and are not
including such a requirement in this final rule. The current animal
handling regulations, set forth at Sec. 2.131, already prohibit the use
of physical abuse, deprivation of food or water, and handling
techniques that cause behavioral distress, physical harm, or
unnecessary discomfort.
Several commenters stated that requirements for employees and
attendants already exist in the current regulations for marine mammals,
and that any updating of employee requirements should be incorporated
into those existing provisions. Another commenter stated that the
requirements for SWTD personnel should be the same ``performance-
based'' requirements as those under the general marine mammal
regulations in Sec. 3.108. The commenter also stated that having a
certain number of ``years of experience'' does not necessarily qualify
an individual for a position.
As indicated in the Supplementary Information section of the
proposed rule, we consider SWTD programs to require more specialized
regulations and standards than are set forth in the current regulations
regarding marine mammals, due to the intense interactive nature of
these programs. Although we agree that a person's ability can not
always be gauged by a given number of years of experience, we do
consider length of experience to be a measurable, minimum initial
standard.
Several commenters objected to the inclusion in the proposed rule
of minimum requirements for a licensee or manager. The commenters
stated that the definitions in 9 CFR 1.1 already contain a definition
of licensee, and one commenter stated that the proposed requirements
for an SWTD licensee or manager are unduly specific when compared to
the broad discretion given to research facilities in Sec. 2.32(a) of
the existing regulations.
We do not consider the regulations for research facilities, set
forth in Sec. 2.32(a), to be applicable to SWTD facilities. If the
requirements of Sec. 2.32(a) were applied to SWTD programs, it would
fall on the licensee or manager of the SWTD program to determine
whether he or she was qualified for the position. This would represent
a substantial conflict of interest. APHIS maintains its position that
SWTD programs require additional requirements, beyond those promulgated
to date for public display facilities, and that providing training and
experience requirements for all personnel directly responsible for the
well-being of the cetaceans is necessary to meet this objective. The
definition of licensee (Sec. 1.1) does not preclude the application of
additional training and experience requirements to specific subparts of
the regulations as necessary. Therefore, we are making no changes based
on these comments.
Restrictions on Cetacean Interaction Time
A number of commenters addressed the requirement set forth in
proposed Sec. 3.111(e)(1) that interaction time for each cetacean not
exceed 2 hours per day, and that each program cetacean have at least
one period in each 24 hours of at least 10 continuous hours without
public interaction. Several commenters stated that the interaction time
for each cetacean should not exceed 1 hour per day. One of these
commenters stated that the recommended 1 hour of interaction time
should be divided into two 30-minute sessions per day, with a rest
period of at least 2 hours between sessions. The other commenter stated
that, in addition to being limited to 1 hour of interaction time per
day, any cetacean exposed to human swimmers for 30 consecutive minutes
should have at least 4 subsequent uninterrupted hours to rest. Another
commenter stated that no animal should interact with more than 16 human
participants per week.
One commenter recommended that interactive time for each cetacean
be limited to no more than 2 hours per day, divided into no fewer than
4 interactive sessions of 30 minutes each, with at least 90 minutes
separating each of these sessions, even if any of the sessions do not
run a full 30 minutes. Another commenter stated that each cetacean
should average no more than four interactive encounters per day, with
no cetacean having more than six of these sessions per day. The
commenter recommended that the mean length of these sessions should be
no more than 15 minutes each, with none lasting more than 20 minutes.
We consider the minimum handling requirements regarding cetacean
interaction time in Sec. 3.111(e)(1) of this final rule, in combination
with other handling requirements in this final rule, as well as those
in the existing regulations, to be adequate to provide sufficient
safeguards to protect the well-being of the program animals. In
addition to the requirements of Sec. 3.111(e)(1), the other handling
[[Page 47135]]
requirements include (1) the general handling requirements of
Sec. 2.131 (handling may not cause, among other things, trauma,
behavioral stress, physical harm, or unnecessary discomfort); (2) the
handling requirements of Sec. 3.111(e)(6) (redesignated as paragraph
(e)(7) in this final rule) to allow the freedom of choice for
participation by the cetacean; and (3) Sec. 3.111(e)(7) (redesignated
as paragraph (e)(8) in this final rule), which requires the removal of
an animal from the session and/or termination of the session if
unsatisfactory behaviors occur.
Although we share the commenters' concern that adequate rest
periods be provided for SWTD cetaceans, we do not believe that evidence
has been presented indicating that the proposed interaction and rest
times are not sufficient to protect the health and well-being of the
animals. Without such evidence, further restriction of the interaction
times or the number of human participants a cetacean may interact with
would place an undue burden on the facility, by either requiring the
addition of animals to the program in order to maintain current
interaction levels, or forcing the facility to sustain a potentially
high economic burden in loss of income due to the increased
restrictions on interactive sessions. The requirements in this rule
pertaining to the enclosure areas, along with a prohibition on the
recall of any animal from the sanctuary area during a session, provide
each SWTD cetacean the option of avoiding interactive sessions.
Therefore, we are making no changes based on these comments.
One commenter opposed the proposed requirement that each program
cetacean have at least one period in each 24 hours of at least 10
continuous hours without public interaction. The commenter said that 10
hours of continuous rest would be on the extreme low side, and that the
commenter knew of no existing program that had less than 16 hours of
continuous rest.
Given the above restrictions on the number of hours of public
interaction for program animals (2 hours per day), the required minimum
of at least one 10-hour continuous rest period is, in fact, not the
only rest period that will be required for program animals. There is no
public interaction allowed for 22 of the 24 hours. Requiring at least
one of the rest periods to be at least 10 continuous hours does not
imply that the animals cannot be rested for longer periods. We see no
indication or reason for currently existing facilities to alter their
operations to lessen their established rest periods. By circumstance
(business hours), most, if not all, facilities will likely exceed the
10-hour rest period overnight. No compelling, scientifically validated
data or other material was supplied to support the above
recommendation. Therefore, we are not making any change to the final
rule based on this comment.
One commenter recommended that, in addition to 10 consecutive hours
of rest in each 24-hour period, each cetacean should have no less than
two full, nonconsecutive days of rest in each 7-day period, or no more
than 2 days of work followed by 1 day of rest. Another commenter stated
that each SWTD cetacean should have 3 full days off per week, and that,
therefore, according to the commenter, no animal should take part in
interactive sessions more than 4 hours a week.
The restrictions recommended by the commenters were not imposed
under the original NMFS permits for the ``experimental'' programs, and
no adverse affects attributed to overwork of animals were reported or
documented. No scientifically valid data or other material was supplied
to support the commenters' recommendations, and we are not aware of
such data or material. Therefore, we are making no changes based on
these comments.
One commenter recommended that the provisions regarding the number
of hours of cetacean participation per day, and the number of rest
hours per day, be more flexible. The commenter, an SWTD facility,
stated that it had sometimes altered its normal schedule of sessions
per day to accommodate bad weather or peak seasons, with no visible ill
effects on program cetaceans.
We are making no changes based on this comment. We consider the
provisions regarding the time limits for participation of cetaceans in
the interactive sessions to be the minimum requirements necessary for
the well-being of the animals affected.
One commenter requested that the regulations clarify that the 2-
hour restriction on sessions set forth in proposed Sec. 3.111 apply to
the actual swim time with the animal, and not to activities such as
introductory explanations by the staff.
The commenter's recommendation is consistent with the intent of the
regulation. To clarify this intent, we are amending Sec. 3.111(e)(1) in
this final rule to state that interaction time (which we describe as
designated interactive swim sessions) for each cetacean shall not
exceed 2 hours per day.
One commenter stated that time constraints for human/cetacean
interaction should either be established for all marine mammals or for
none. The commenter stated that activities such as training and feeding
currently require more than 2 hours at a time throughout the day, with
no negative effects to either animals or humans.
The intent of the proposed rule was to provide regulations and
standards for SWTD programs, not for all marine mammals. Program
animals are, like their non-SWTD counterparts, subject to the training
and handling necessary for marine mammal care and well-being. However,
the SWTD programs place additional interactive time commitments on the
animals. It is this additional interactive activity that this rule is
designed to regulate. Therefore, we are making no changes based on this
comment.
Training and Behavior of Cetaceans
Proposed Sec. 3.111(e)(2) provided that all cetaceans used in an
interactive session must be adequately trained and conditioned in human
interaction so that they respond in the session to the attendants with
appropriate behavior for safe interaction. One commenter stated that
the term ``appropriate behavior'' was open to broad interpretation and
should be precisely defined. One commenter stated that the regulations
should specify that, before being used in an SWTD program, cetaceans
must be well-trained for ``stationing,'' as well as for immediate
``recall'' under a wide variety of circumstances. Several commenters
recommended that ``gate-training'' of cetaceans be specifically
required.
Several commenters recommended a specified minimum period of
training for cetaceans before participation in SWTD programs, ranging
from 6 months to 1 year. Several other commenters recommended that,
before being used in an SWTD program, cetaceans should have to
demonstrate competency for a variety of husbandry/medical behaviors
that would be useful for veterinary examinations without inducing
excessive stress to cetaceans. One commenter stated that the proposed
regulations did not define ``adequately trained,'' and that such an
omission would give too much leeway to operators.
We are not making any changes to the final rule regarding the
training of program animals. However, in this final rule,
Sec. 3.111(e)(7) and (e)(8) (paragraphs (e)(6) and (e)(7) in our
proposed rule) are reworded to clarify our intent regarding what
constitutes ``inappropriate'' behavior. We are adding the terms
unsatisfactory, undesirable, or unsafe to describe such
[[Page 47136]]
behavior. An exhaustive list of ``appropriate'' behavior would vary in
different situations, depending on the facility and program design, and
not all behaviors will be necessary in all situations. Such a list is
variable, depending on the facility and program design.
Under the requirements set forth in Sec. 3.111(g), semi-annual
medical examinations of program animals by the attending veterinarian
are required. In order to comply with this requirement, and at the same
time meet the general requirement of Sec. 2.131 that handling be
conducted so as to minimize stress to the animals, it will be necessary
for facilities (management, trainers, and attending veterinarian) to
establish a workable veterinary/husbandry protocol that minimizes
stress on program animals. This will likely include trained husbandry
and veterinary behaviors, but other methods may be developed as well.
Innate animal characteristics, trainability, and temperament, as
well as training techniques, training schedule, and prior trained
behaviors, will all influence the length of time needed to train an
animal to participate safely in an SWTD program. It would not be
practical to impose a specific time limit on the training of a program
animal. The regulations in Sec. 3.111(f) as proposed required, among
other things, that prospective SWTD programs provide APHIS with a
description of the training each animal has undergone or will undergo
prior to participation in the program. One commenter requested that we
require this description to include the number of hours of training for
each animal and its responsiveness to the training.
We intended the number of hours of training to be included in the
description of training. To clarify this intent, we are requiring at
Sec. 3.111(f)(1)(v) of this final rule ``a description of the training,
including actual or expected number of hours, each cetacean has
undergone or will undergo prior to participation in the program.'' This
requirement will give APHIS an overview of each facility's training
program. We do not consider a mere description of the animal's
responsiveness to training necessary to improve the animal's well-being
and are not adding such a requirement to the regulations.
One commenter recommended that cetaceans being trained undergo no
greater exposure to humans during each 24-hour period than that allowed
for cetaceans already participating in a program.
The proposed rule did not limit cetacean/trainer interaction time,
only public interaction time during designated SWTD sessions. It is not
the intent of this rule to restrict cetacean/trainer interactions,
which are necessary to maintain desirable behaviors, and we are making
no changes based on this comment.
Positioning of Attendants
Under the handling requirements proposed at Sec. 3.111(e)(5)
(redesignated as paragraph (e)(6) in this final rule), we set forth the
requirement that all interactive sessions must have at least two
attendants. We proposed further that at least one of the attendants
must be positioned in the water, except in cases where at least one
attendant is positioned so as to be able to intervene in the session as
quickly as if positioned in the water. We proposed, however, that, if a
program has had more than two incidents during interactive sessions
that have been dangerous or harmful to either a cetacean or a human, at
least one attendant must be positioned in the water.
Several commenters opposed the requirement that one attendant be
positioned in the water, stating that each attendant would have a
better view and be able to respond better if positioned out of the
water. Further, the commenters stated that an attendant positioned in
the water may distract SWTD cetaceans, and, additionally, might have to
continuously tread water at facilities where there is no shoreline or
shallow water. Conversely, several commenters stated that there should
be no exceptions to the requirement that one attendant be positioned in
the water during SWTD sessions. One of these commenters stated that
requiring an attendant in the water if there have been more than two
dangerous incidents implies that it is safer to do so; therefore, an
attendant should be required in the water at all times. Another
commenter recommended that the regulations require that one staff
member be positioned in the water within 5 feet of each human
participant/cetacean pair, and that one attendant be positioned pool
side for every two human participant/cetacean pairs.
The proposed provisions regarding how many, if any, attendants need
to be in the water were based on the premise that an attendant in the
water could observe more easily and react more quickly to a situation
where either a cetacean or a human was behaving in a potentially
harmful way. The proposed provision that an attendant be required to be
in the water at a facility where two or more incidents harmful to a
cetacean or human have taken place, but not necessarily at other
facilities, was predicated on the premise that, at a facility where
such incidents do not take place, the attendants are adequately
positioned out of the water to forestall any such incidents.
We consider the commenters' observations that attendants not
positioned in the water have a better view overall, and that an in-
water attendant recognized by the cetaceans may be distracting to the
cetaceans, to be valid ones, and are addressing the commenters'
concerns by revising the final rule as set forth in the following
paragraph.
Additionally, we can see why the dual standard we proposed with
regard to positioning of attendants might be confusing to readers. In
the proposed rule, no limit on the time period during which the two
incidents may have occurred was defined. As proposed, the rule would
cover the lifetime of the facility. This does not seem reasonable, and
it was not the intent of the proposed rule to impose such a
restriction. Therefore, we are including in this final rule a 1-year
time frame regarding the two incidents that have been dangerous or
harmful to either a cetacean or a human. As modified, Sec. 3.111(e)(6)
will provide that all interactive sessions must have at least two
attendants. At least one attendant must be positioned out of the water.
One or more attendants may be positioned in the water. If a facility
has more than two incidents during interactive sessions within a year's
time span that have been dangerous or harmful to either a cetacean or a
human, APHIS, in consultation with the head trainer/behaviorist, will
determine if changes in attendant positions are needed.
With regard to the commenter's recommendation that one attendant be
required to be in the water for each human participant/cetacean pair,
Sec. 3.111(e)(4) of this final rule addresses the minimum number of
attendants required for each interactive session by requiring that the
ratio of human participants to attendants not exceed 3:1. We consider
this requirement to provide an adequate number of attendants and are
making no changes to the ratio.
Dangerous or Harmful Incidents
One commenter recommended that any SWTD program that experiences
two or more dangerous or harmful incidents in any 6-month period should
be forced to close permanently. Another commenter stated that if a
program experiences more than two dangerous incidents, interactive
sessions should be
[[Page 47137]]
suspended until APHIS has reexamined the program.
Formal disciplinary proceedings initiated by APHIS are subject to
the AWA and the Administrative Procedure Act's statutory due process
requirements. The AWA currently allows the Secretary to impose a 21-day
summary license suspension, and any additional license suspension,
revocation, or civil penalty can only be imposed after notice and an
opportunity for a hearing. If a dangerous or harmful incident occurs at
an SWTD facility, APHIS will determine if noncompliance with the
regulations contributed to or was responsible for the incident. If such
a finding is made, appropriate enforcement action will be taken. This
may include letters of warning, stipulations, license suspensions,
license revocations, or civil penalties. Due process will be afforded
by APHIS to each respondent. Therefore, we are making no changes to the
final rule based on these comments.
Space Requirements
In Sec. 3.111(a) of our proposed rule, we proposed requirements for
the amount of space that must be provided to cetaceans in SWTD
programs. A number of commenters addressed those provisions. One
commenter stated the current space requirements for marine mammals in
subpart E of the regulations should be expanded, which the commenter
stated would eliminate the need to establish space requirements unique
to SWTD programs. Several commenters said the SWTD calculations should
be extended to all facilities, not just SWTD facilities.
We are in the process of reviewing and considering revisions to the
current space requirements for marine mammals, as set forth in
Sec. 3.104, and consider it beyond the scope of this rulemaking to
address the general space requirements here.
One commenter stated that, even though the proposed space
provisions for SWTD cetaceans exceed those in the current regulations,
the increases are so marginal as to be inconsequential. The commenter
stated that the regulations should promote what the commenter termed
one of the primary principles of captive animal containment--i.e.,
``space to move in any direction that is normal to the species without
being unduly cramped or confined.'' One commenter stated that the
minimum surface area requirement and the minimum volume requirement for
each animal in the interactive area should be tripled.
We do not agree that the proposed increases in space requirements
for SWTD cetaceans are ``marginal.'' For example, under current
Sec. 3.104, the minimum horizontal dimension (MHD) for Tursiops
truncatus is 24 feet; the proposed SWTD MHD was 81 feet (an increase of
over 300 percent). Likewise, the proposed depth requirement is 50
percent greater than that found in Sec. 3.104. The surface area
requirement in the proposed rule was 572.26 ft2 for each
area, compared with 95.38 ft2 for nonprogram animals under
Sec. 3.104. We consider the proposed space requirements for SWTD
programs to be sufficient to allow the animals to move freely in all
three dimensions. Therefore, we are making no changes to the final rule
based on these comments.
Several commenters stated that the regulations should include
language to make clear that the proposed space requirements relate only
to marine mammals designated for SWTD programs, and that standards for
other marine mammals are contained elsewhere in the regulations.
We consider our intent to apply the provisions of this rule to SWTD
animals to be clearly stated in the provisions as written, and are
making no changes based on the comment.
One commenter stated that the regulations should specify that the
space requirements promulgated for SWTD cetaceans shall be calculated
on the basis of the maximum number of SWTD cetaceans participating per
session within each primary enclosure for SWTD programs.
As written, the space requirements for an SWTD enclosure are to be
calculated based on the number of animals in the enclosure (sanctuary,
buffer, and interactive areas). We do not consider it necessary to
revise the wording as proposed.
A number of commenters addressing the proposed space requirements
for SWTD programs submitted specific recommended calculations. Several
commenters stated that the minimum horizontal dimension should be 10 to
12 times the average Tursiops truncatus adult body length.
The commenters did not support their recommendations with
scientific justification or other evidence. We believe that
implementing the standards recommended by the commenters would place an
undue economic burden on each licensee, perhaps unnecessarily forcing
most, if not all, operations out of business, due either to the cost of
expansion or to the inability to obtain the space needed for such
expansion. In the absence of evidence that the recommended standards
are necessary, we are making no changes to the final rule based on
these comments.
Several commenters recommended that the proposed minimum horizontal
dimension (MHD) for each of the three areas in SWTD programs should be
increased to take into account additional space for each human
participant in the water. Several commenters recommended adding 67
inches to the MHD for each person in the water; another commenter
recommended adding 7-8 feet for each swimmer. Several commenters
recommended that the minimum surface area for one cetacean plus
swimmers be based on the following formula:
[GRAPHIC] [TIFF OMITTED] TR04SE98.020
\*\ Assuming a swimmer-to-cetacean ratio of 2:1.
Commenters also recommended that, at a minimum, the surface area
formula for each additional cetacean in excess of one should be:
[GRAPHIC] [TIFF OMITTED] TR04SE98.021
[[Page 47138]]
Because the interactive session time per animal is restricted to 2
hours per day (approximately 8 percent of the time), and the public
interaction is restricted to the interactive area, we do not consider
it practical or necessary to increase the space requirements for the
interactive area or the entire enclosure.
One commenter recommended adding an additional shallow section of
at least 8' x 12' to accommodate participants who are only wading.
Each SWTD program has the choice to provide certain interactive
facilities. It is beyond the scope of APHIS authority to require a
facility to allow wading. Space requirements for interactive areas with
wading sections are discussed below.
In our proposed rule, we proposed to require a minimum average
depth of 9 feet in each of the three SWTD areas. Several commenters
said that the minimum average depth for each area should be 3 to 4
times the length of the average cetacean.
At this time, we consider the 9-feet average depth requirement to
provide sufficient space for the average cetacean that is currently
being used in SWTD programs. This requirement will enable the average
cetacean currently being used in SWTD programs to pass under or around
the average human participant in the water. Therefore, we are making no
changes based on this comment. APHIS will, however, closely monitor
this issue to ensure that cetaceans used in SWTD programs are provided
adequate space. If the need for any modifications to the average depth
requirement or any other requirement becomes necessary in the future,
APHIS will address such modifications in a subsequent rulemaking.
One commenter stated that basing required depth on an average
minimum of 9 feet is not sufficient, given that mean low tides of open
ocean facilities can differ dramatically from, and be significantly
less than, their average depth. The commenter said that because
sufficient depth is necessary to accommodate inter-specific (cetacean-
with-cetacean) interactions, the regulations should include a mean low
depth requirement of more than 9 feet.
In natural seawater (sea pen) facilities, the depth requirements in
Sec. 3.104 and Sec. 3.111(a)(3) mean that the water depth at low tide
must meet or exceed the minimum depth required by each regulatory
section. The use of the term ``average depth'' in Sec. 3.111(a)(3)
means that the area depth profile must average at least 9 feet (at low
tide). We recognize that not all programs will advocate or require all
public participants to be fully immersed in the water and actually swim
with the cetaceans. Some facilities will provide the opportunity for
wading with the animals or interacting with the animals from a dock or
similar structure. Wading areas, obviously, would not be 9 feet in
depth. Including such areas in space requirement calculations would
likely require other parts of the enclosure to have areas significantly
deeper that 9 feet. This was not the intent of the rule. Consistent
with our enforcement of general space requirements for marine mammals
in the current regulations (Sec. 3.104), only those areas that are used
in calculating the average depth may be used in calculating whether the
area meets the minimum requirements for MHD, surface area, and volume--
i.e., other sections may be shallower, and not be included in
determining the average depth of the entire area, but may not
contribute to meeting other minimum space requirements.
To clarify our intent with regard to calculating the average depth
of an interactive area, we are revising Sec. 3.111(a)(3) to provide
that although the average depth for each of the enclosure's areas at
low tide must be at least 9 feet, a portion of each area (e.g., wading
areas) may be excluded when calculating the average depth. However, the
excluded portion may not be used in calculating whether the area meets
the minimum requirements for MHD, surface area, and volume. In
addition, proposed Sec. 3.111(a)(3) contained an inadvertent oversight
of depth requirements for non-ocean pen enclosures. Therefore, in this
final rule, Sec. 3.111(a)(3) requires that all pools not subject to
tidal action shall have an average depth of at least 9 feet.
One commenter stated that one-on-one patient therapy sessions
require much less space than other types of interactions.
The space required for an interactive session was not the basis for
the space requirements. Rather, the space requirements were developed
to provide as stress-free an environment as possible for SWTD animals
involved in these types of programs. Interactions with members of the
public are the same, whether general open sessions or therapy sessions.
Water Clarity
In Sec. 3.111(b) of our proposal, we proposed that sufficient water
clarity must be maintained so that attendants are able to observe
cetaceans and humans at all times while within the interactive area. We
proposed that if the water clarity does not allow these observations,
the interactive sessions must be canceled until the required clarity is
provided.
The introductory heading to proposed Sec. 3.111(b) read ``Water
quality.'' One commenter stated that the heading was a misnomer,
because proposed Sec. 3.111(b) was concerned only with ``in-water
visibility'' in the interactive area.
We agree that the heading to the paragraph in question could be
confusing. To clarify our intent, we are revising the heading of
Sec. 3.111(b) as proposed to read ``Water clarity.''
One commenter, while supporting the proposed water clarity
provisions, stated that the regulations should require some quantified
degree of clarity that makes proprietors totally accountable in the
event of any harm to animals or people. Another commenter recommended
that the regulations provide that, at facilities with reduced water
clarity, swimmers be required to remain at the surface and cetaceans be
maintained under direct trainer control.
We are making no changes based on these comments. There exists no
recognized or generally accepted quantitative marker of acceptable
water clarity. Establishing a quantitative requirement for acceptable
water clarity would place an increased recordkeeping and reporting
burden on the facility, without recognizable benefit to the animals. If
attendants can see the animals and human participants in the session,
the water clarity is sufficient. The intent of provisions regarding
water clarity is to ensure that attendants maintain visual contact with
all session participants. If this is not possible, the session must be
terminated. This rule already requires the cetaceans to be under the
direct control of the attendants.
Several commenters stated that the same water quality standards
should be applied to the sanctuary and buffer areas as are applied to
the interactive area. One commenter stated that the existing water
quality criteria under Sec. 3.106 (for indoor and outdoor facilities)
should be applied to SWTD programs. One commenter, who recommended that
the regulations allow only controlled swims (discussed below), said
that if all SWTD swims are controlled, it would be necessary to observe
SWTD program cetaceans only when in direct contact with participating
humans in the interactive area. The commenter stated that proposed
Sec. 3.111(b) should therefore either be removed or be revised to
reflect the need for limited observation of the cetaceans.
Because SWTD attendants are unlikely to know exactly where program
cetaceans and swimmers will move in the interactive area, it is not
feasible to provide for only limited application to
[[Page 47139]]
the water clarity standards in that area. The same degree of clarity,
however, will not always be necessary in the buffer and sanctuary
areas. The introductory text to Sec. 3.111 as proposed specified that
SWTD programs must comply with both the provisions of Sec. 3.111 and
with all other requirements of subpart E pertaining to cetaceans. This
includes all water quality requirements found in Sec. 3.106. Under
Sec. 3.106(a), the primary enclosure may not contain water that would
be detrimental to the health of the marine mammals contained in the
enclosure. We consider the wording of Secs. 3.106 and 3.111(b) adequate
and necessary to provide the water quality and clarity needed for the
health of the animals and the safe conduct of SWTD sessions, and are
making no changes based on these comments.
One commenter stated that consideration should be given to
broadening the required water quality testing to ensure adequate
cetacean and human health. The commenter stated that existing standards
assume that natural seawater pens do not have the potential for water
quality problems except for coliform bacteria.
All general water quality parameters, including any special
requirements for natural seawater facilities, will be addressed in a
proposed revision of subpart E, currently under development, and are
beyond the scope of this rule.
Instructions to the Public
Several commenters specifically supported the proposed provision in
Sec. 3.111(e)(4) (redesignated as paragraph (e)(5) in this final rule)
that, prior to participating in an SWTD interactive session, members of
the public must be provided with written rules and instructions for the
session, and that members of the public must agree, in writing, to
abide by the rules and instructions. However, the commenters each
recommended that the regulations also require that the rules and
instructions be presented orally.
Those SWTD programs that are currently operating hold oral
orientation sessions prior to the interactive session. APHIS supports
this practice, and considers it appropriate to include such a
requirement in the regulations. Therefore, we are adding language at
the introduction to Sec. 3.111(e)(5) of this final rule to require that
prior to participating in an SWTD interaction session, members of the
public be provided with oral and written rules and instructions for the
session.
Several commenters recommended that customers be informed of the
potential risk of injury or disease transmission, and be warned that,
except for staff or program negligence, they participate at their own
risk.
There is no documented evidence of any significant zoonotic
(disease transmission between cetaceans and humans) risk to date, and
we do not consider it appropriate to require that the public be
provided with undocumented information. Therefore, we are making no
change in response to these comments.
Controlled Sessions
A number of commenters recommended that all SWTD interactive
sessions be required to be ``controlled.'' One commenter requested that
APHIS acknowledge a 1994 report to NMFS by Amy Samuels, which the
commenter stated concluded that controlled SWTD sessions do not pose
any significant risk to cetacean or human participants. Several
commenters suggested definitions of ``controlled swim.'' Central to
each definition was the provision that professional animal trainers or
attendants must directly control each human/cetacean interaction. One
commenter requested that the regulations include an outline of a
typical or anticipated interactive session that demonstrates the
trainers' method and degree of control over interactions.
We do not consider it necessary or appropriate to include in the
regulations an outline of a typical interactive session. Such an
outline could be unnecessarily restrictive and potentially inaccurate,
since each facility is allowed to develop its own program within the
framework of this rule. However, the intent of the proposed rule was to
require head trainer/behaviorist, trainer/supervising attendant, or
attendant control of the SWTD interactive sessions. We are amending
Sec. 3.111(e)(2) as proposed to clarify this intent, adding the
provision that the head trainer/behaviorist, trainer/supervising
attendant, or attendant must at all times control the nature and extent
of the cetacean interaction with the public during a session, using the
trained responses of the program animal.
Inappropriate Behavior
Proposed Sec. 3.111(e)(6) (redesignated as paragraph (e)(7) in this
final rule) provided that each SWTD program must limit interaction
between cetaceans and humans so that the interaction does not harm the
cetaceans, does not remove the element of choice from cetaceans, and
does not elicit undesirable responses from cetaceans.
Several commenters requested that the regulations include
definitions of ``harm'' and ``undesirable responses.'' Another
commenter stated that ``harm'' should include, among other things, any
action causing the cetaceans to flee, flinch, spontaneously breach, or
exhibit other abrupt behavior.
We are making no changes based on these comments. The definitions
set forth in Sec. 1.1 of the regulations apply to all sections of the
regulations. Because the term ``harm'' is already used throughout the
regulations and standards, it is beyond the scope of this regulatory
action to develop a definition that would apply to all regulated
entities and species. The use of the term ``harm'' in Sec. 3.111 is
consistent with use of this term throughout the rest of the
regulations. The term ``undesirable behaviors'' is discussed later in
this document. As with the term ``harm,'' because of the number of
different animals and activities regulated under the AWA, and the fact
that definitions set forth in Sec. 1.1 apply throughout the
regulations, we consider it more practicable to address the term
``undesirable behavior'' in the provisions relating to SWTD programs
than to include a definition of the term in the definitions sections.
As previously noted, Sec. 3.111(e)(7) and (e)(8) of this final rule
clarify what constitutes inappropriate behavior. We are using the terms
unsatisfactory, undesirable, or unsafe to describe such behavior.
Proposed Sec. 3.111(e)(6) also provided that SWTD programs must
prohibit grasping or holding of the cetacean's body, unless under the
direct and explicit instruction of an attendant eliciting a specific
cetacean behavior. A small number of commenters addressed this proposed
provision as it would apply to ``dorsal towing.'' One commenter opposed
any ban on dorsal towing. Another cited studies that the commenter said
indicated some cetaceans actually seek certain types of SWTD
interactions. The commenter also cited the study commissioned by NMFS
that the commenter said indicated dorsal towing is not associated with
any type of problematic cetacean-swimmer interaction. One commenter
stated the proposed regulations seemed to imply that the decision
whether to allow dorsal towing would be left to each facility. The
commenter expressed concern that this would give an economic advantage
to facilities that allow such towing.
The language used in proposed Sec. 3.111(e)(6) concerning the
grasping or holding of any cetacean body part unless under the direct
and explicit instruction of the attendant eliciting a specific cetacean
behavior was intended to apply to activities such as, but not
[[Page 47140]]
limited to, dorsal towing. As indicated in one of the comments, dorsal
towing, in and of itself, is not specifically associated with
problematic interactive behaviors. However, we consider the
restrictions of proposed Sec. 3.111(e)(6) necessary to protect other
sensitive body areas on the cetacean, such as the blowhole and the
eyes. The behaviors elicited during an interactive session are
determined by the head trainer and management, and are reviewed by
APHIS under Sec. 3.111(f). With regard to any economic advantage that
might be gained from allowing dorsal towing, data available to us
regarding current SWTD programs does not indicate a disparity between
programs that allow dorsal towing and those that prohibit it.
One commenter stated that because touching of cetaceans in
sensitive places has been associated with triggering antagonistic
cetacean behavior, human participants who restrain, pull, or grab at
cetaceans should immediately be removed from the swim session and not
permitted to return. Another commenter stated that the following
behaviors by human participants should be considered high-risk:
Hitting, chasing, flinching or screaming, slapping of water, grabbing,
and a rapid or abrupt approach.
The proposed rule did not include an exhaustive list of specific
``high-risk'' behaviors by human participants, and we do not consider
it appropriate to include such a list in this final rule. Each facility
will develop its own list of instructions and rules, which must be
submitted to APHIS for review. Grasping or holding the cetacean's body
(this would include grabbing, restraining, or pulling, etc.) is
prohibited under Sec. 3.111(e)(7). As such, it must appear in the
written and oral rules presented to the public. In Sec. 3.111,
paragraph (e)(5) requires anyone who violates these rules to be removed
by the facility from the session.
Proposed Sec. 3.111(e)(7) (redesignated as paragraph (e)(8) in this
final rule) provided that, in cases where cetaceans used in an
interactive session exhibit unsatisfactory behaviors, such as charging,
biting, mouthing, or sexual contact with humans, either those cetaceans
must be removed from the interactive area or the session must be
terminated. The regulations as proposed also provided that written
criteria must be developed and submitted to APHIS regarding conditions
and procedures for the termination of a session when removal of a
cetacean is not possible.
A number of commenters addressed these proposed provisions. One
commenter requested that the regulations include definitions of
behavior that is ``inappropriate, undesirable, unsatisfactory, or
harmful'' for participating cetaceans and swimmers. Where we proposed
to provide examples of undesirable behavior by saying ``such as
charging, biting, mouthing, or sexual contact with humans,'' several
commenters stated that the ``such as'' should be replaced by
``including but not limited to.''
We do not consider it practicable or appropriate to provide an
exhaustive list of all exhibited behaviors that might be
unsatisfactory, undesirable, or unsafe during an interactive session.
Each situation or set of circumstances is unique, and the array of
cetacean behaviors is extensive. To clarify that the list of behaviors
included in Sec. 3.111(e)(8) of this final rule is not exhaustive, we
are adopting the commenter's recommendation to preface the examples
provided with the words ``including, but not limited to.'' In addition,
we are amending Sec. 3.111(e) (7) and (8) to include the words
``unsatisfactory,'' ``undesirable,'' or ``unsafe'' to describe such
types of behaviors. In the absence of a specific regulatory definition,
terms used are considered to have their common meaning in ordinary
usage.
Several commenters considered the list of examples of undesirable
behaviors to be imprecise and over-inclusive. One commenter stated that
``charging'' and ``mouthing'' should be considered unsatisfactory only
if done in a manner deemed unsatisfactory in the judgment of the
trainers present. One commenter stated that the regulations should
distinguish between aggressive mouthing and gentle mouthing, the latter
of which the commenter said may be an attempt by a cetacean to be
affectionate toward a human swimmer. Another commenter stated that
rubbing up against humans by the animals that is not of a sexual nature
should be allowed to continue.
Although it is possible that, in some circumstances, mouthing may
not be an inappropriate behavior during an interactive session,
charging cannot be considered innocuous at any time. For the safety of
the humans, and to decrease the risk of retaliatory behavior in the
event the human participant provokes the cetacean through responses to
these behaviors, these types of behaviors will not be tolerated during
an interactive session. Therefore, we are making no further changes to
Sec. 3.111(e)(8) of this final rule, other than those changes discussed
above. Several commenters recommended expansion of the list of what we
would consider ``undesirable behavior'' on the part of cetaceans to
include behaviors likely to result in harm to a swimmer or indicative
of risk to a cetacean. The commenter suggested such things as biting,
hitting, ramming, body-slams, forceful pushing, chasing, open-mouth
threats, head-jerk threats, jaw clap threats, fleeing, flinching,
mounting, thrusting, genital insertion, erection, repetitive genital
rubbing, beak-to-genital propulsion, abrupt turning or circling, quick
approaches, leaping, and breaching. One commenter suggested that we
additionally include ``porpoising'' and ``slapping water.''
As stated above, we do not consider it necessary to amend the
proposed language other than as noted. The list of ``undesirable
behaviors'' recommended by the commenters is very specific and includes
behaviors (such as leaping, breaching, and circling) that, when
exhibited under the direction of the trainer/attendant, may not be
inappropriate.
One commenter stated that swimmers should be notified of what
undesirable behavior on the part of cetaceans is, in case the attendant
fails to observe it. Another commenter stated that swimmers should be
warned that cetaceans can be aggressive and dangerous, and be
instructed to call the local APHIS office if they are injured in an
interactive program.
Although we recognize the commenter's rationale for informing the
SWTD participants what constitutes undesirable behavior, such a list is
extensive, and can be greatly influenced by circumstances. We consider
it adequate to include in the pre-encounter instructions the
appropriate rules and instructions, as well as restrictions on types of
physical contact with the cetaceans (as set forth in
Sec. 3.111(f)(1)(iii) of this rule).
We agree that it would be helpful for participants to know how to
contact an APHIS office in the case of injuries or complaints, and are
adding such information to Sec. 3.111(e)(5) of this final rule. To help
ensure that the public knows whom to contact in case of injury,
Sec. 3.111(e)(5) of this final rule will require that the oral and
written information provided to human participants include telephone
and FAX numbers for APHIS, Animal Care, for reporting injuries or
complaints.
Several commenters recommended that the regulations require removal
of the participating humans, rather than the cetaceans, in cases where
cetaceans exhibit unsatisfactory behaviors. One commenter stated that
the return of swimmers to the water should be dependent on the decision
of the primary behaviorist. Several commenters recommended the removal
[[Page 47141]]
of both the human participant and the cetacean in such situations. Two
commenters stated that, when removing cetaceans or swimmers, it will be
necessary to maintain the swimmer/cetacean ratio at the allowable
level.
Under Sec. 3.111(e)(8) of this final rule, the facility must
develop, and submit to APHIS for approval, written criteria that
address termination and resumption of a session. As noted above, if an
incident is the fault of the human participant not adhering to the
rules, under Sec. 3.111(e)(5)of this final rule, that participant must
be removed. In all cases, the human participant/cetacean ratio
specified in Sec. 3.111(e)(4) of this final rule must be observed,
which may require removing public members from the session if a
cetacean is removed. We consider the language of this final rule to be
sufficient to cover these issues. If the cetacean cannot be removed
from the interactive area, Sec. 3.111(e)(8) of this final rule requires
that the session be terminated.
One commenter stated that mildly aggressive behavior merely
demonstrates momentary annoyance on the part of the cetacean, and that
extremely aggressive behavior by cetaceans is very rare and occurs only
when the human is acting aggressively. The commenter recommended that
if a cetacean is repeatedly severely aggressive, or is observed to be
severely aggressive without provocation, that animal should be removed
from the SWTD program and be returned only at the discretion of the
primary attendant. One commenter recommended that cetaceans exhibiting
aggressive behavior be removed from the program for at least 24 hours,
and also recommended that the conditions under which the animals could
be returned be specified in the regulations. Some commenters stated
generally that provision should be made for reintroducing the cetaceans
to an SWTD program after they are retrained. Several commenters stated
that the regulations should require the submission of plans for either
retraining and reintroducing the cetaceans to an SWTD program, or
transferring the animals to a standard public display facility.
In Sec. 3.111(e)(7) as proposed (redesignated as paragraph (e)(8)
in this final rule), we set forth the requirement for a written
protocol addressing program animals that exhibit potentially unsafe
behaviors, as well as a protocol for ending a session when an animal
exhibiting unsatisfactory behaviors cannot be removed from the
interactive area. In order to clarify our intent with regard to the
issues raised by the commenters, we are adding language to
Sec. 3.111(e)(8) of this final rule to require that the written
protocol address how animals exhibiting potential unsatisfactory,
undesirable, or unsafe behaviors will be handled, including, but not
limited to, such things as retraining protocols, time off from program,
and what the facility will do with animals that can no longer
participate safely in the program.
Several commenters recommended that, in addition to being removed
from an SWTD session, cetaceans exhibiting undesirable behavior should
be permanently banned from SWTD programs and be set free after
successfully completing a readaption and release program.
We believe that this final rule provides safeguards on animals that
exhibit inappropriate behavior. We are making no changes based on these
comments. It is not within the jurisdiction or authority of APHIS to
require that animals not usable in an SWTD session be released into the
wild.
One commenter recommended that APHIS consult with the professional
marine mammal trainer community to determine the following: (1)
Conditions under which cetaceans must be permanently removed from SWTD
programs; (2) conditions under which cetaceans must be removed
temporarily from SWTD programs for retraining; (3) what form retraining
will take; and (4) what housing conditions and social environments are
appropriate for cetaceans removed temporarily or long-term from SWTD
programs.
Because the regulations in this final rule require the facility to
develop a plan and submit it to APHIS for the handling of problem
animals in the SWTD program, we do not consider it necessary to consult
with the International Marine Animal Trainer's Association or a similar
organization at this time. If a concern arises regarding a specific
protocol submitted, APHIS will determine the acceptability of the
protocol.
One commenter stated that criteria for termination of a session
should be developed by APHIS, not by the SWTD facility, and that the
decision whether to implement the termination procedures should be left
to the behaviorist or supervising attendant. Conversely, one commenter
stated that protocols for removing cetaceans or terminating sessions
should not have to be submitted to APHIS, but rather, should be
developed by and be maintained at the facility for review upon request.
We consider the language in Sec. 3.111(e)(8) of this final rule
regarding unsatisfactory, undesirable, or unsafe cetacean behavior,
discussed above, to provide for the necessary APHIS oversight on the
issue of session termination. Therefore, we are making no changes based
on these comments.
Proposed Sec. 3.111(e)(7) (redesignated as paragraph (e)(8) in this
final rule) provided that the primary behaviorist shall determine when
operations will be terminated, and when they may resume. We proposed,
further, that in the absence of the primary behaviorist, these
determinations shall be made by the supervising attendant.
One commenter recommended that the decision whether to terminate a
session be made by the ``experienced head trainer,'' and that, in cases
where SWTD cetaceans exhibit unsatisfactory behaviors during a session,
direct contact between participating cetaceans and humans be terminated
until the experienced head trainer, experienced qualified trainer, or
designated attendant determines that the unsatisfactory behavior has
been ameliorated through operant conditioning.
As noted above, the requirements of Sec. 3.111(e)(8) of this rule
include submission to APHIS of a written protocol for responding to
instances of inappropriate behavior by program animals. This allows the
facility to designate the chain of responsibility for making the
decision to remove the animal and/or terminate the session. APHIS will
be responsible for reviewing and approving all such protocols. However,
we consider it to be in the best interest of the animals and the SWTD
program to allow only the head trainer/behaviorist to determine when a
session may be resumed, and such a provision is included in
Sec. 3.111(e)(8) of this final rule.
With regard to the commenter's reference to amelioration of
unsatisfactory behavior through ``operant conditioning,'' we have
discussed earlier our policy of not requiring any specific training
method, as long as the training methods used are not in violation of
the AWA.
One commenter expressed concern that the proposed rule did not
include requirements governing how long offending cetaceans must be
kept out of the program and under what conditions they may be returned.
Because each animal and the circumstances for its removal from the
program will be unique, it would not be advisable to mandate one
protocol for determining how the behavioral infraction and retraining
must be handled. We consider the language as proposed for
Sec. 3.111(e)(7) and as modified for Sec. 3.111(e)(8) of this final
rule, as discussed above, to be adequate
[[Page 47142]]
to address the concerns and issues raised in these comments.
One commenter expressed concern that the requirements in proposed
Sec. 3.111(e)(7) did not require separate gated holding area(s) for
cetaceans that must be removed, either temporarily or permanently, from
swim activities.
The requirements under proposed Sec. 3.111(e)(7) (as amended above
as paragraph (e)(8)) include submission of written protocols to APHIS
for approval, and termination of a session if the offending cetacean
cannot be removed from the interactive area. These provisions will
require the facility to determine and to set forth how it will handle
an animal that must be removed from the program for an extended period
of time, and such protocols will be subject to APHIS approval. We do
not consider it necessary or practical to require facilities to
maintain a primary enclosure that may never be needed.
Reporting and Recordkeeping
In Sec. 3.111(f) of the proposed rule, we set forth requirements
for reporting and recordkeeping that would have to be met by SWTD
facilities. Several commenters expressed general opposition to any
reporting and recordkeeping requirements that are not applicable to all
marine mammals under the regulations. One commenter recommended that
the only additional recordkeeping required for SWTD programs should be
a log of cetacean/human interaction times and a listing of cetacean
participants in the programs.
Due to the nature of the SWTD programs, which may place
participating animals at an increased risk of stress and injury
compared to other marine mammal exhibits, we consider the recordkeeping
requirements specific to SWTD programs to be necessary in enforcing the
SWTD regulations and in protecting the well-being of the program
animals. In the following paragraphs, we discuss specific proposed
recordkeeping requirements as addressed by commenters.
We proposed in Sec. 3.111(f)(1) that prospective SWTD programs must
submit to APHIS specified descriptive information about their program
at least 30 days prior to the proposed initiation of the program, and
that existing facilities must submit such information within 30 days of
the effective date of the final rule.
Commenters stated that the regulations should require that
descriptions of SWTD programs must be received by APHIS at least 120
days prior to the proposed initiation of a program, rather than 30 days
as required by the proposed rule, so that APHIS can give notice of the
request for approval in the Federal Register and accept comments on the
request. One commenter recommended that APHIS also forward the notice
of intent to the Marine Mammal Commission for comment.
We are making no changes based on these comments. Under the AWA, a
person meeting the regulations and standards of the AWA will be issued
a license. The AWA, and the regulations promulgated under the AWA, do
not require publication of a notice in the Federal Register prior to
the issuance of a license. Such a requirement would be inconsistent
with all other licensing procedures under the AWA, and we consider it
unnecessary in the licensing of facilities that comply with the
regulations and standards.
One commenter requested that the regulations state that a new SWTD
program may not begin operations until any deficiencies noted by APHIS
in its pre-approval inspection have been corrected. Another commenter
stated that the regulations should set forth or cite the processes and
procedures for revoking or denying licenses.
New facilities are subject to all licensing requirements
promulgated under the AWA, including being in compliance with the AWA
during a pre-licensing inspection (Secs. 2.1 through 2.11). Currently
licensed facilities that wish to add an SWTD program would be subject
to the requirements of Sec. 3.111, including APHIS evaluation of the
plans and facility prior to the start of the program.
The process for revoking a license is found in the AWA (7 U.S.C.
2149), and we do not consider it necessary to include it in the
regulations. Denial of a license is addressed in Sec. 2.11. All
facilities must comply with all AWA regulations that apply to their
regulated activity.
Several commenters specifically opposed a number of the reporting
and recordkeeping requirements in proposed Sec. 3.111(f), and certain
of the proposed veterinary requirements in Sec. 3.111(g). The proposed
provisions in question, the commenter's concerns and recommendations,
and our responses, are as follows.
One commenter opposed the provision in proposed Sec. 3.111(f)(1)(i)
that the Administrator could require that a description of program
cetaceans include more than each animal's name and/or number, sex, and
age.
We consider this provision necessary to allow APHIS to require
further identifying information or techniques if more specific and
permanent identification is necessary to trace animals in or between
SWTD programs. For example, instances may arise where an animal that
shows a pattern of inappropriate behavior changes ownership and
location. In such a case, APHIS may require that information be
available in order to trace the animal's ownership and history.
Therefore, we are retaining the provision in question in this final
rule.
One commenter opposed the requirement in proposed
Sec. 3.111(f)(1)(ii) for the reporting of the duration of encounters
per cetacean per day, stating that, because the regulations require
that interaction time not exceed 2 hours per day, the average duration
of encounters is not relevant.
We consider the reporting of the duration of interactive periods
for each cetacean necessary in enforcing the 2-hour daily interaction
limit, and are making no changes based on the comment.
One commenter opposed the requirement for a description of the
educational content of interactive sessions, stating that such a
requirement was outside the scope of APHIS's regulatory authority.
Conversely, several commenters stated that APHIS should conduct a
formal, in-depth review of the educational content of proposed
programs, with the Administrator retaining the right to deny a permit
to a facility whose educational content is misleading or inadequate.
We disagree that requiring a description of educational content is
beyond APHIS's authority. Prior to APHIS's being mandated to regulate
SWTD programs, NMFS regulated the educational content of SWTD programs
under special permit conditions. APHIS was granted sole jurisdiction
for SWTD programs in 1994. The educational material presented to
participants may directly impact the well-being of the cetaceans, by
presenting information regarding what is ``acceptable'' treatment of
cetaceans, both in captivity and in the wild. With regard to denying a
permit based on review by APHIS of an educational program, APHIS does
not grant permits under the AWA, and, therefore, cannot deny such a
permit. As discussed above, we designed this rule to provide protection
of the animals under the AWA, without placing an undue burden on
licensees. Therefore, if a person applies for a license, is determined
to be in compliance with all appropriate regulations and standards
under the AWA, and pays the appropriate licensing fee, that person will
be licensed. Under Sec. 3.111(f)(2), APHIS will inform the facility of
any
[[Page 47143]]
deficiencies found in the submitted recordkeeping documents.
With regard to the commenter recommendation that APHIS conduct a
``formal, in-depth'' review of the educational content of proposed
programs, it is not clear to us from the comments exactly what form of
review the commenters were recommending. As discussed above, APHIS will
officially review the content of each educational program.
As part of the information required to be submitted to APHIS under
proposed Sec. 3.111, we proposed under Sec. 3.111(f)(1)(iii) that an
SWTD facility must provide APHIS with the content and method of pre-
encounter orientation, rules, and instructions, including restrictions
on types of physical contact with the cetaceans. One commenter stated
that the restrictions on physical contact should be determined by
APHIS.
The regulations as proposed and as set forth in this final rule
include prohibition of certain forms of contact. However, beyond what
is specifically prohibited by the regulations, different facilities may
wish to establish additional rules concerning what program content may
be safe and appropriate for that facility. For example, whether a
facility includes behavior such as kissing or presenting of tail may
depend on the level of expertise and training of its staff. APHIS will
review each program and may request clarification or justification of a
given proposed behavior, and will determine if the proposed program is
in accordance with Sec. 3.111(e)(7) of this final rule.
One commenter stated that it would be more appropriate to keep at
the facility the information regarding pre-encounter instruction
required under Sec. 3.111(f)(1)(iii), than to submit it to APHIS as
required under the proposed provisions.
Submission to APHIS of the information in question is necessary to
allow the Animal Care Staff Officer responsible for APHIS oversight of
SWTD programs, in conjunction with APHIS regional and field personnel,
to evaluate as needed the records in question. This oversight is
necessary to provide consistent and uniform enforcement.
One commenter objected to the requirement in proposed
Sec. 3.111(f)(1)(iv) that a description of the SWTD facility include
housing at the facility other than the primary enclosure, stating that
such a requirement was outside the scope of the regulations. Another
commenter said that the regulations should specify that operations may
not commence until a site visit by APHIS inspectors has confirmed that
the description of the program and facility is accurate and that the
facility meets all the requirements of the regulations.
It appears from the comments that we should clarify the intent of
this requirement. The information that must be submitted under
Sec. 3.111(f)(1)(iv) includes a description of the primary enclosure
and other housing facilities utilized by SWTD cetaceans. These include,
but are not limited to, holding or training enclosures and medical
facilities. To clarify this intent, we are requiring at
Sec. 3.111(f)(1)(iv) of this rule ``a description of the SWTD facility,
including the primary enclosure and other SWTD animal housing or
holding enclosures at the facility.'' (The licensee must also comply
with any other applicable regulations in subpart E, ``Marine
Mammals.'') All new (previously unlicensed) facilities will, by
regulation, be required to undergo the regular prelicensing protocols
as set forth in part 2 of the AWA regulations and standards. Currently
licensed facilities that may wish to begin an SWTD program will be
subject to inspection as deemed necessary by APHIS. This is consistent
with APHIS enforcement of the AWA in other areas of animal care.
One commenter opposed the requirement in proposed
Sec. 3.111(f)(1)(vi) for a reporting of the curriculum vitae of all
staff involved in the handling, care, and maintenance of cetaceans in
the program, stating that such a requirement was burdensome,
unnecessary, and not consistent with other APHIS requirements. The
commenter recommended that the regulations require instead only a
summary of the background of the licensee, the experienced head
trainer, and the experienced qualified trainer.
The proposed language requiring submission of a curriculum vitae
for all staff involved in the handling, care, and maintenance of the
program animals was intended to provide documentation of compliance
with Sec. 3.111(c) and to verify that the persons involved in the care
of the cetaceans have adequate training and experience. We believe that
at least part of the perceived burden of this requirement was due to
our use of the term curriculum vitae, which to some people implies a
rigid, lengthy format. To clarify our intent, we are removing the
reference to curriculum vitae in Sec. 3.111(f)(1)(vi) and are replacing
it with the requirement that a ``resume'' be submitted for each of the
employees in question. In ordinary common usage, a resume allows for a
more flexible format than does a curriculum vitae.
One commenter stated that, along with a curriculum vitae, the
regulations should require a description of how the staff positions
were established and filled through the use of validated, professional
personnel protocols.
Beyond assuring the use of adequately trained and experienced
personnel, we consider it inappropriate to dictate the personnel or
resource management practices of private enterprises.
One commenter stated that, in addition to requiring proof of each
animal's physical health, the regulations at Sec. 3.111(f)(1)(vii)
should require that every cetacean that is a candidate for an SWTD
program must first pass a thorough behavioral evaluation conducted by
the attending veterinarian.
We are making no changes based on this comment. Although a number
of experienced marine mammal veterinarians may have exposure to or
experience in the area of marine mammal behavior, we do not consider a
behavioral evaluation by an attending veterinarian a necessity. We
consider it most appropriate for a trained behaviorist to evaluate the
suitability of a cetacean for an SWTD program and to conduct its
subsequent training.
One commenter recommended deletion of the proposed requirement in
Sec. 3.111(f)(1)(viii) that a written program of veterinary care (APHIS
form 7002), including protocols and schedules of professional visits,
be submitted to APHIS. The commenter stated that APHIS should apply its
standard approach with regard to veterinary care.
The regulations regarding SWTD programs set forth at Sec. 3.111 are
designed to address issues and areas where additional requirements or
clarification appear necessary to address the special needs of a given
program or species. As stated previously in this document, SWTD
programs may potentially pose a higher risk of injury and stress to the
animals than do standard marine mammal facilities. To address this
possibility, more detailed veterinary care requirements are set forth
at Sec. 3.111(g). However, after review of the comments received, we
have reassessed the need for submission of a written program of
veterinary care at all facilities, and have determined that a written
protocol is not necessary if the facility employs a full-time
veterinarian or consultant. We continue to believe that a written
program of veterinary care is necessary at facilities that do not have
a full-time attending veterinarian or consultant, and are including
language in this final rule to clarify that intent. Therefore,
Sec. 3.111(f)(1)(viii) of this final
[[Page 47144]]
rule will require the submission of, ``for facilities that employ a
part-time attending veterinarian or consultant arrangements, a written
program of veterinary care (APHIS form 7002), including protocols and
schedules of professional visits.''
We proposed in Sec. 3.111(f)(1)(ix) to require a detailed
description of the monitoring program to be used to detect and identify
changes in the behavior and health of SWTD cetaceans. One commenter
stated that such a monitoring program should be developed and
prescribed by APHIS.
Because each facility will be developing its own program, we do not
consider it practical to impose a strict, standardized monitoring
system that may be inappropriate for a facility and its personnel.
Because documentation of each monitoring program must be submitted to
APHIS for evaluation, we will have adequate opportunity to clarify any
issues concerning each program and to work with each facility in
developing an appropriate program.
One commenter stated that it would be more appropriate to keep the
information required in Sec. 3.111(f)(1)(ix) on site for APHIS
inspection than to require that it be submitted to APHIS.
As discussed above regarding the need to submit pre-encounter
presentation and instruction to APHIS, the intent of Sec. 3.111(f) is
to allow APHIS to evaluate in a consistent manner proposed programs for
compliance with the regulations. Because this evaluation will be
carried out at APHIS Animal Care headquarters, the necessary
information must be submitted to APHIS.
We provided in proposed Sec. 3.111(f)(2) that, in the case of a new
or existing SWTD program that APHIS finds deficient in any respect, the
facility will be notified of the deficiencies and be provided the
opportunity to make corrections. One commenter opposed this provision,
stating that APHIS should deny or revoke operating licenses if the
regulations are not complied with.
The procedures for denying a license and revocation of a license
have been previously discussed. However, in order to clarify our intent
in the proposed rule, Sec. 3.111(f)(2) of this final rule will require
that all SWTD programs comply in all respects with the regulations and
standards set forth in parts 2 and 3 of the AWA regulations. Correction
dates are only given by APHIS to licensees or registrants to facilitate
compliance with the AWA and the regulations and standards. Licensees
and registrants are still liable for violations at the time they are
identified by APHIS, even though they may subsequently be corrected.
One commenter recommended that the requirement in proposed
Sec. 3.111(f)(3) that individual animal veterinary records be kept at
the SWTD site for 5 years be changed to follow what the commenter
called ``general APHIS requirements''-- i.e., retention of records on-
site for 1 year, retention of necropsy reports for 3 years, and
availability of such records for inspection at the facility.
The potential long-term medical and stress effects of SWTD programs
have not been documented to date. In order to assess any chronic
problems that may be associated with these programs, medical records of
longer than 1 year are necessary. For example, any changes in the
reproductive cycle of program animals would require examination of
records of more than 1 year. However, after review of comments
received, we consider retention of records for 3 years, instead of 5
years, to be sufficient to document long-term effects on program
animals. Accordingly, we are amending the requirement for veterinary
recordkeeping at Sec. 3.111(f)(3) to require that such records be
retained for 3 years and be made available to an APHIS official upon
request during inspection. We are also clarifying the recordkeeping
requirements at Sec. 3.111(f)(5) and (g)(5) to state that the records
that must be kept at the facility regarding participation in the SWTD
program and water quality must be made available to an APHIS official
upon request during inspection.
One commenter expressed concern that the individual animal
veterinary records required under proposed Sec. 3.111(f)(3) would not
be required to be submitted to APHIS.
We are making no changes based on this comment. The regulations
promulgated under the AWA have never required that medical records,
including necropsy records, be submitted to APHIS. Rather, the records
are required to be maintained at the regulated facility for APHIS's
inspection. We have found this requirement adequate for effective
enforcement of the regulations, and do not consider the additional
reporting burden of submitting such records to APHIS to be justified.
APHIS may acquire copies of these records during an investigation.
Several commenters suggested that complete reports of necropsies
conducted on SWTD cetaceans should be submitted to APHIS as a matter of
course, rather than only ``during facility inspections, or as required
by APHIS,'' as was proposed. One commenter recommended that the
regulations include the name and telephone number of an APHIS contact.
Several commenters recommended that the regulations require that a copy
of the necropsy results be submitted to NMFS as well as to APHIS.
As noted above, the requirement that necropsy reports be retained
at the facility and be made available to APHIS for inspection is
consistent with all other species requirements under the AWA
regulations. This requirement has been sufficient for APHIS enforcement
of those regulations. Therefore, we are making no changes to the final
rule based on these comments.
In Sec. 3.111(g)(6) of our proposed rule, we set forth the
requirement that, in the event of the death of a cetacean, complete
necropsy results, including all appropriate histopathology, must be
recorded in the cetacean's individual file and be made available to
APHIS officials during facility inspections, or as requested by APHIS.
Several commenters recommended that APHIS delineate, comprehensively
and in detail, what would be required in a ``complete necropsy.''
Additionally, a commenter recommended that, prior to cetaceans being
necropsied, still photographs should be made of the cetaceans, and also
that necropsies of cetaceans should be videotaped.
As discussed above, the intent of this rule is not to define or
regulate the practice of veterinary medicine. We consider
Sec. 3.111(g)(6) of this final rule to be adequate for APHIS
enforcement of the regulations.
Several commenters opposed the requirement in proposed
Sec. 3.111(f)(5) that a copy of statistical reports regarding
participation by cetaceans and humans, and a report of any changes in
the SWTD program, be submitted to APHIS on a semi-annual basis. The
commenter stated that ``general APHIS requirements'' should be
followed. One commenter recommended that the submission of such reports
be required more often than every 6 months. Several commenters
recommended that the statistical summary include the number of minutes
per day that each cetacean participated in an SWTD session, rather than
both that information and the number of hours each week that a program
animal participated in an interactive session.
We assume that, by ``general APHIS requirements,'' the commenter
was referring to requirements elsewhere in the regulations that the
information be kept on hand and available at the facility for
inspection by an APHIS official. We agree that maintaining at the
facility records of the number of minutes of cetacean interaction per
day,
[[Page 47145]]
rather than both that information and the number of hours per week, is
acceptable with regard to the required statistical analysis. Therefore,
this final rule does not require semi-annual submission of records of
the number of hours of participation per week. However, it does require
that the number of minutes of each animal's participation per day be
kept at the facility. Further, we continue to consider it necessary
that changes in an SWTD program be documented and submitted to APHIS on
a semi-annual basis, in order to allow for APHIS evaluation of the
program content. We do not consider semi-annual reporting of program
changes to be excessive, and we believe it provides sufficient and
necessary oversight of program changes and compliance.
One commenter opposed the requirement at proposed Sec. 3.111(f)(6)
for the reporting of all incidents resulting in injury to either
cetaceans or humans participating in an interactive session. The
commenter recommended that the regulations require instead the
reporting only of injurious incidents that result from direct contact
between participating animals and humans and that require treatment by
either a veterinarian or a physician. The commenter also recommended
that APHIS provide a voice mail number and a FAX number to SWTD
operators to facilitate compliance with the reporting requirements.
In order to enforce the safe operation of SWTD programs, APHIS
needs to be made aware of all injuries resulting from the interactive
sessions, both to humans and cetaceans. This information will be used,
not only in the enforcement of the current regulations and standards,
but as a tool to evaluate the need for regulatory changes to prevent
future injuries. There are many types or degrees of injuries that would
not require intervention by a veterinarian or physician, but that may
be preventable in the future. Therefore, we are retaining the
requirement that all incidents involving injury to human or cetacean
SWTD participants be reported to APHIS.
Because of the danger of telephone and FAX numbers in the
regulations becoming outdated, we do not consider it advisable to
publish such information in the Code of Federal Regulations. However,
we will provide to each SWTD facility information on available means of
communication.
One commenter recommended that the regulations require that, in
addition to the reporting of injuries, incidence of disease
transmission to cetaceans and/or humans be reported to APHIS on a
timely basis.
Because there has been no reported disease transmission between
cetaceans and humans in the U.S. public display industry, there does
not appear to be a need to require such reporting. Therefore, we are
not making any changes to the final rule based on this comment.
One commenter recommended that the regulations specifically require
consistency and thoroughness in both immediate and quarterly reports.
All records will be examined during routine, unannounced
inspections by APHIS personnel. Any problems or discrepancies will be
addressed at that time. As long as the required information is
available in an understandable form, APHIS does not require, at this
time, that a specific format be used.
Veterinary Evaluations
Among other things, proposed Sec. 3.111(g) contained the
requirements that the attending veterinarian at an SWTD program conduct
on-site evaluations of each cetacean at least once a month, observe an
interactive swim session at the SWTD site at least once each month, and
conduct a complete physical examination of each cetacean at least once
every 6 months. One commenter recommended that the regulations require
instead that the attending veterinarian conduct an on-site evaluation
of each cetacean every 2 weeks, that a fully qualified veterinarian
with proven marine mammal competence be physically present pool side
during each commercial human/cetacean interaction, and that the
attending veterinarian physically examine each cetacean every 3 months
instead of every 6 months.
Requiring a physical examination of the program animals by the
attending veterinarian every 6 months is consistent with currently
accepted practices for marine mammal veterinary medicine.
There is neither historical nor current information to support the
recommendation that the attending veterinarian must be on-site during
every interactive session. Because most current SWTD facilities employ
a part-time veterinarian, such a regulation would place an undue burden
on the facilities and the attending veterinarians.
The comments received included no evidence of the advantages of
requiring biweekly, rather than monthly, visits to the program by the
attending veterinarian. In the absence of data demonstrating the
benefits of such a requirement, relative to the burden and costs it
would entail, we do not consider it appropriate or necessary to impose
such a requirement.
One commenter objected to the proposed requirement that each
cetacean be physically examined every 6 months. The commenter stated
that conducting such an examination could potentially harm a cetacean,
by making it necessary that it be netted. The commenter stated that
netting would be necessary for programs in a natural environment where
cetaceans could not be trained to beach themselves for examination.
Additionally, the commenter questioned the need for physical
examinations of cetaceans that are maintained in a stress-free
environment.
Because program animals are required to be trained and under the
control of the trainers/attendants during sessions, we do not agree
that requiring semi-annual examinations is unreasonable. All animals
should be trained in husbandry behaviors that facilitate the required
examinations. Regular preventive medicine check-ups represent the
current state of accepted and adequate veterinary medical care
programs. The goal is to prevent problems, rather than have to deal
with emergencies or very sick animals. Additionally, although we can
try to reduce unnecessary stress, we are not aware of any stress-free
environment. Further, stress is not the only factor that can affect the
health and well-being of an animal.
Several commenters stated that requirements relating to veterinary
evaluations of the cetaceans participating in SWTD programs should be
incorporated into and be consistent with ``general'' APHIS
requirements. Additionally, the commenter took issue with our statement
in the explanatory information of the proposed rule that the proposed
veterinary monitoring is necessary to help prevent the spread of
zoonotic diseases. The commenter stated that APHIS inspections have
produced no evidence of such diseases, and that the scientific
literature does not contain such evidence. Another commenter stated
that the reference in our explanatory information to veterinary
standards developed at an NMFS-sponsored workshop refers to temporary
standards developed for a specific study.
The nature of the SWTD program, with much more diverse human
interaction than other programs of public display of marine mammals,
necessitates a focused monitoring of the health and well-being of these
animals.
[[Page 47146]]
As noted above, we are aware of no scientific documentation
demonstrating a risk of zoonotic disease transmission between human and
cetaceans. It was not the intent of the proposed rule to imply that
such data exists. Perhaps our intent would have been better conveyed by
the statement that ``this regular monitoring will be a beneficial tool
in the prevention of the spread of potentially zoonotic diseases during
the program.'' Therefore, we are making no changes to the final rule
based on these comments.
Animals Adversely Affected
One commenter recommended that the regulations should use the
wording developed by NMFS to require the following: (1) That animals
that respond adversely to encounters be removed from the program until
such time as their health is restored and/or their behavior poses no
risk to humans involved in the program; (2) that cetaceans be removed
from swims with members of the public while on medication for
infectious illness or a debilitating condition; and (3) that the
program be suspended immediately if a cetacean shows signs of program-
related health problems or undesirable behavior as a result of the SWTD
program.
The issues of when, behaviorally, an animal must be removed from
and may be returned to the interactive program sessions have been
addressed above and are set forth in Sec. 3.111(e)(8) of this final
rule. We do not consider it necessary to require cessation of a session
if the offending animal can be removed from the area. Although we agree
there is potential value in including specific language concerning the
health status of animals used during a session, we are aware of no
medical reason to require the removal of all animals that may be on
medication. (Medication for an infectious or chronic illness may be
administered well beyond any infectious or dangerous stage.) To clarify
our intent, Sec. 3.111(e)(3) of this final rule provides that all
cetaceans used in interactive sessions must be in good health,
including, but not limited to, not being infectious, and that cetaceans
undergoing veterinary treatment may be used in interactive sessions
only with the approval of the attending veterinarian.
Several commenters stated that the proposed regulations included no
course of action for cetaceans found to be sick or injured. One
commenter expressed concern that the proposed regulations did not
require isolation pools for sick animals.
Regulations concerning the use of medical or isolation pools for
sick animals are found in the general marine mammal regulations of 9
CFR part 3, subpart E. The regulations in Sec. 3.111 deal with
situations and concerns specific to SWTD programs.
Nutritional and Reproductive Status of SWTD Cetaceans
In Sec. 3.111(g)(4) of our proposed rule, we set forth the
requirement that the attending veterinarian record the nutritional and
reproductive status of each cetacean. One commenter stated that the
regulations should specify that the attending veterinarian must
determine and record the nutritional and reproductive status of each
cetacean every 3 months.
Our intent was that the information required in Sec. 3.111(g)(4) be
recorded during each monthly visit to the facility. Therefore, we are
rewording proposed Sec. 3.111(g)(4) to clarify this intent. In this
final rule, Sec. 3.111(g)(4) will read: ``The attending veterinarian,
during the monthly site visit, shall record the nutritional and
reproductive status of each cetacean (i.e., whether in active breeding
program, pregnant, or nursing).''
Health and Safety Precautions
One commenter recommended that the rules of each program require
human participants to shower with soap and water before and after
interactive sessions. Another commenter stated that each human
participant should be informed that facilities for showering with soap
and water before and after swim sessions are available, and that
showering is recommended.
Because we do not, under the AWA, require trainers and attendants
at facilities other than SWTD facilities to shower, we are leaving this
decision to the facility and to State and local health ordinances to
dictate. Because it would not be in the best interest of facilities to
risk the health of their animals, we believe that facilities, through
the issuance of their own rules for the program (which are subject to
APHIS evaluation) will address these issues in the most appropriate
manner for each facility.
One commenter stated that the regulations should require that all
human participants in an SWTD session be ``disease-free''--i.e., no one
should be allowed to swim with cetaceans if he or she has any known
conditions. The same commenter stated that SWTD facilities should be
used only for recreational swims, not for therapy.
We are making no changes based on this comment. All SWTD activities
held at USDA licensed facilities, including therapy sessions, will be
subject to this final rule. It is beyond the scope of this rule to
restrict licensed facilities from participating in therapy sessions. We
consider it appropriate to allow each facility to establish the health
rules that apply to the human participants in the interactive sessions,
in accordance with all State, local, and public health ordinances.
One commenter recommended that each SWTD facility be required to
develop a contingency plan for storms, to deal with the potential
escape of cetaceans. The commenter stated that such a contingency plan
should include a strategy for marking each cetacean so that ``escaped''
cetaceans can be distinguished from wild animals, and therefore be more
easily recognized and captured.
The need for contingency plans is addressed in the general marine
mammal regulations in Sec. 3.101. Any changes to those provisions will
be addressed in future rulemaking.
One commenter expressed concern that the proposed regulations
included no provision for or discussion of human safety with regard to
an SWTD pool being a swimming pool--e.g., with regard to lifeguard and
cardio-pulmonary resuscitation training.
Our authority under the AWA extends to the humane handling, care,
and treatment of animals covered by that Act. However, the AWA and duly
promulgated regulations and standards do not preclude a facility from
adhering to all appropriate State and local laws and ordinances. If a
facility is located in a community that requires lifeguards, etc., at
the facility, it is the responsibility of the facility to comply with
such a requirement.
One commenter stated that SWTD program rules should specifically
prohibit the feeding of cetaceans by customers.
Under the current regulations, feeding of marine mammals is
acceptable under certain conditions (Sec. 3.105(c)). As discussed
above, it is up to the facility, subject to APHIS evaluation of program
parameters, to determine which behaviors and activities it will include
in its interactive sessions.
One commenter stated that more research regarding human/cetacean
interactions should be done before additional SWTD programs are
created.
Four NMFS-permitted SWTD programs have already been studied (see
footnote 1, above). Further program analysis cannot be done without
more programs to study. We consider there to be sufficient historical
and study data to conclude that no justifiable reason exists to
prohibit the operations of SWTD programs. APHIS does not have
[[Page 47147]]
the authority to allow some facilities to operate an SWTD program,
while prohibiting others that meet the requirements under the AWA from
operating.
One commenter expressed concern that the proposed rule did not
restrict the participation of small children in an SWTD program. The
commenter stated that the lack of such a restriction would increase the
risk of injury to human participants and, as a result, could have an
adverse effect on program cetaceans.
At this time, we consider the issue of the age of human
participants to be most appropriately left to the facility. While it
seems obvious that facilities' whose program involves swimming in deep
water must require their customers to be able to swim, facilities that
also offer programs for wading or participation from a dock may require
the same degree of swimming ability. At this time, no evidence has been
presented to us that would support a strict age limit on human
participation in these programs. APHIS will reevaluate this position if
injury data and/or animal medical records indicate a change is
necessary.
Miscellaneous
We are also making nonsubstantive changes in this final rule for
conformity and clarity.
Therefore, based on the information set forth in the proposed rule
and in this final rule, we are adopting the provisions of the proposal
as a final rule with the changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of
Management and Budget. The analyses required by Executive Order 12866
and the Regulatory Flexibility Act are set forth below.
We are issuing this rule in accordance with our authority under the
Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.). The AWA requires that
the Secretary of Agriculture promulgate standards to govern the humane
handling, care, treatment and transportation of animals by dealers,
exhibitors, research facilities, and carriers and intermediate
handlers.
This final rule establishes regulations and standards for the
humane handling, care, and treatment of cetaceans used in SWTD
programs. These regulations and standards address space requirements,
veterinary care, personnel and handling requirements, and
recordkeeping. Until this final rule becomes effective, APHIS does not
have in place specific standards that address the special
considerations of SWTD programs. The provisions of this final rule are
necessary to address those considerations, so that the animals used in
the program are treated in a humane manner.
Under this rule, operators of SWTD programs will be required to
meet specified standards for those programs. These standards will
include requirements for handling, facility design, reporting, and
recordkeeping.
Currently, close to 135 exhibitors in the United States are
licensed by APHIS to hold marine mammals. Of this number, at least six
operate SWTD programs. At least four of these six exhibitors already
meet the standards we are establishing in this final rule. The
remaining exhibitors may have to make certain design changes and
provide for additional training to comply with the standards. The cost
of the additional training requirements would be approximately $15,000
per facility. The estimated costs of materials to complete the design
changes would be approximately $1,000 per facility. Based on
information provided by the industry concerning the average annual
gross revenue of SWTD programs, the additional costs involved in
complying with the standards should not pose a significant economic
burden on SWTD exhibitors, all of whom are considered small entities.
Through this final rule, benefits will accrue to society by the
public's knowing that animals in future, as well as in existing SWTD
programs, will be cared and handled in a humane manner. The value of
these social benefits are subject to personal preferences and concerns
and cannot be directly compared with the costs to affected entities.
In development of this rule, we examined and rejected the
alternative options of (1) foregoing AWA regulations in favor of
industry self-regulation, and (2) developing regulations more stringent
than those set forth in this rule.
We did not consider it feasible to choose the option of foregoing
regulation of SWTD program facilities. The special needs and
requirements of these programs are not conducive to self-regulation at
this time, because we cannot be sure that all facilities that may
become licensed will voluntarily accept the same standards.
Likewise, we did not consider the option of adopting even more
stringent requirements to be warranted. Standards more restrictive than
those set forth in this rule would require significant increases in
expenses and recordkeeping, without a commensurate increase in the
well-being of program animals.
A summary of our analysis of selected specific recommendations
addressed in detail in the preamble that we consider to be
unnecessarily costly include the following:
Space requirements in excess of those required by this rule:
Commenters recommended that each SWTD facility have four areas, rather
than three; that the sanctuary and buffer areas be three times the size
of the interactive areas; and that space requirements be based on 10-12
times the average adult body length. We do not consider there to be
documented benefits to program animals to justify these recommended
requirements. Requiring an increase in the size of the enclosure beyond
that required in this final rule, or requiring an additional enclosure
area would potentially force five of the six currently operating
facilities to close or to move and/or build new facilities. Recent pool
construction of a new facility with one primary enclosure similar in
size to those recommended cost approximately $10 million. If space were
available for existing facilities to expand the size of their cetacean
areas, small to medium pool enlargements could cost approximately $1
million per facility.
Increased personnel requirements: Commenters recommended that the
regulations set forth certified job descriptions; that a fully
qualified veterinarian with proven marine mammal competence be
physically present at poolside during each commercial human/cetacean
interaction; and that the attending veterinarian conduct an on-site
evaluation of each cetacean every 2 weeks, rather than every month as
required by this rule. We consider the regulations in this final rule
to be adequate to protect the well-being of program animals and the
additional cost that would be imposed by the commenter recommendations
to be unnecessary. Creating uniform position descriptions would require
meeting and negotiations among current facilities. We estimate such
interaction would cost each facility approximately $10,000 in travel
costs and time absent from duties at the facility. To require a full-
time veterinarian to be present at all sessions would cost between
$75,000 and $100,000 per year per facility. Requiring biweekly visits
by the attending veterinarian would double the costs for such visits
required by this rule, with the chance that some facilities would
[[Page 47148]]
not be able to retain their attending veterinarian due to excessive
time requirements.
Increased cetacean rest periods: Several commenters recommended
that the rest periods for each program animal be increased beyond that
required by this rule. We consider the rest periods required by this
rule to be adequate for the well-being of the animals, and consider
increased rest periods to be unnecessarily costly with no documented
benefit to the animals. If the requirements recommended by the
commenters were implemented, facilities would either have to add
animals to their programs or decrease the number of sessions per
facility. Adding animals would require an estimated 25-100 percent
increase in animal maintenance costs, in addition to the cost of
acquiring the animals and possible increased personnel costs. If the
number of allowable sessions per day were decreased by one beyond those
allowed under this rule, each facility would suffer the loss of six to
nine customers per session. At approximately $125 per session for each
person, each facility would lose from $750-1,125 per day. Over a period
of 350 to 365 operating days per year, the annual loss per facility
would total from $262,500 to $410,625.
This final rule will require affected entities to comply with
reporting and recordkeeping requirements. Each facility operating an
SWTD program must submit written copies of the rules and instructions
used in the introductory session, the procedures for terminating a
session, a description of the SWTD program, and reports regarding
participation in the program. Additionally, each facility will be
required to maintain veterinary, feeding, and behavioral records for
SWTD animals, as well as profile (animal identification) information,
nutritional and reproductive status information, and a written
assessment by the attending veterinarian. Facilities will be required
to report to APHIS injuries sustained by cetaceans or human
participants.
The estimated extent of the reporting and recordkeeping
requirements is as follows:
Estimate of burden: The public reporting burden for this collection
of information is estimated to average .16830 hours per response.
Respondents: Owners and operators of SWTD facilities.
Estimated annual number of respondents: 6.
Estimated annual number of responses: 30,344.
Estimated annual number of responses per respondent: 7,586.
Estimated total annual burden on respondents: 5,170 hours. (Due to
rounding, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the average reporting
burden per response.)
The Department has identified no Federal rules that duplicate,
overlap, or conflict with this rule.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would not preempt any State or local laws, regulations or
policies, unless they present an irreconcilable conflict with this
rule. The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this final rule have been approved by the Office of
Management and Budget (OMB) under OMB control numbers 0579-0036 and
0579-0115.
List of Subjects
9 CFR Part 1
Animal welfare, Animal housing, Dealers, Exhibitors, Humane animal
handling, Research facilities.
9 CFR Part 3
Animal welfare, Humane animal handling, Pets, Reporting and
recordkeeping requirements, Transportation.
Accordingly, 9 CFR parts 1 and 3 are amended as follows:
PART 1--DEFINITION OF TERMS
1. The authority citation for part 1 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).
2. In Sec. 1.1, definitions of buffer area, interactive area,
interactive session, sanctuary area, and swim-with-the-dolphin (SWTD)
program are added in alphabetical order, to read as follows:
Sec. 1.1 Definitions.
* * * * *
Buffer area means that area in a primary enclosure for a swim-with-
the-dolphin program that is off-limits to members of the public and
that directly abuts the interactive area.
* * * * *
Interactive area means that area in a primary enclosure for a swim-
with-the-dolphin program where an interactive session takes place.
Interactive session means a swim-with-the-dolphin program session
where members of the public enter a primary enclosure to interact with
cetaceans.
* * * * *
Sanctuary area means that area in a primary enclosure for a swim-
with-the-dolphin program that is off-limits to the public and that
directly abuts the buffer area.
* * * * *
Swim-with-the-dolphin (SWTD) program means any human-cetacean
interactive program in which a member of the public enters the primary
enclosure in which an SWTD designated cetacean is housed to interact
with the animal. This interaction includes, but such inclusions are not
limited to, wading, swimming, snorkeling, or scuba diving in the
enclosure. This interaction excludes, but such exclusions are not
limited to, feeding and petting pools, and the participation of any
member(s) of the public audience as a minor segment of an educational
presentation or performance of a show.
* * * * *
PART 3--STANDARDS
3. The authority citation for part 3 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).
4. In subpart E, Sec. 3.104, paragraph (b)(4)(ii), footnote 9 is
redesignated as footnote 10 and footnote 8 in Sec. 3.104(b)(4)(i) is
redesignated as footnote 9.
5. A new Sec. 3.111 is added to read as follows:
Sec. 3.111 Swim-with-the-dolphin programs.
Swim-with-the-dolphin programs shall comply with the requirements
in this section, as well as with all other applicable requirements of
the regulations pertaining to marine mammals.
(a) Space requirements. The primary enclosure for SWTD cetaceans
shall contain an interactive area, a buffer area, and a sanctuary area.
None of these
[[Page 47149]]
areas shall be made uninviting to the animals. Movement of cetaceans
into the buffer or sanctuary area shall not be restricted in any way.
Notwithstanding the space requirements set forth in Sec. 3.104, each of
the three areas required for SWTD programs shall meet the following
space requirements:
(1) The horizontal dimension for each area must be at least three
times the average adult body length of the species of cetacean used in
the program;
(2) The minimum surface area required for each area is calculated
as follows:
(i) Up to two cetaceans:
[GRAPHIC] [TIFF OMITTED] TR04SE98.022
(ii) Three cetaceans:
[GRAPHIC] [TIFF OMITTED] TR04SE98.023
(iii) Additional SA for each animal in excess of three:
[GRAPHIC] [TIFF OMITTED] TR04SE98.024
(3) The average depth for sea pens, lagoons, and similar natural
enclosures at low tide shall be at least 9 feet. The average depth for
any manmade enclosure or other structure not subject to tidal action
shall be at least 9 feet. A portion of each area may be excluded when
calculating the average depth, but the excluded portion may not be used
in calculating whether the interactive, buffer, and sanctuary area meet
the requirements of paragraphs (a)(1), (a)(2), and (a)(4) of this
section.
(4) The minimum volume required for each animal is calculated as
follows:
Volume = SA x 9
(b) Water clarity. Sufficient water clarity shall be maintained so
that attendants are able to observe cetaceans and humans at all times
while within the interactive area. If water clarity does not allow
these observations, the interactive sessions shall be canceled until
the required clarity is provided.
(c) Employees and attendants. Each SWTD program shall have, at the
minimum, the following personnel, with the following minimum
backgrounds (each position shall be held by a separate individual, with
a sufficient number of attendants to comply with Sec. 3.111(e)(4)):
(1) Licensee or manager--at least one full-time staff member with
at least 6 years experience in a professional or managerial position
dealing with captive cetaceans;
(2) Head trainer/behaviorist--at least one full-time staff member
with at least 6 years experience in training cetaceans for SWTD
behaviors in the past 10 years, or an equivalent amount of experience
involving in-water training of cetaceans, who serves as the head
trainer for the SWTD program;
(3) Trainer/supervising attendant--at least one full-time staff
member with at least 3 years training and/or handling experience
involving human/cetacean interaction programs;
(4) Attendant--an adequate number of staff members who are
adequately trained in the care, behavior, and training of the program
animals. Attendants shall be designated by the trainer, in consultation
with the head trainer/behaviorist and licensee/manager, to conduct and
monitor interactive sessions in accordance with Sec. 3.111(e); and
(5) Attending veterinarian--at least one staff or consultant
veterinarian who has at least the equivalent of 2 years full-time
experience (4,160 or more hours) with cetacean medicine within the past
10 years, and who is licensed to practice veterinary medicine.
(d) Program animals. Only cetaceans that meet the requirements of
Sec. 3.111(e)(2) and (3) may be used in SWTD programs.
(e) Handling. (1) Interaction time (i.e., designated interactive
swim sessions) for each cetacean shall not exceed 2 hours per day. Each
program cetacean shall have at least one period in each 24 hours of at
least 10 continuous hours without public interaction.
(2) All cetaceans used in an interactive session shall be
adequately trained and conditioned in human interaction so that they
respond in the session to the attendants with appropriate behavior for
safe interaction. The head trainer/behaviorist, trainer/supervising
attendant, or attendant shall, at all times, control the nature and
extent of the cetacean interaction with the public during a session,
using the trained responses of the program animal.
(3) All cetaceans used in interactive sessions shall be in good
health, including, but not limited to, not being infectious. Cetaceans
undergoing veterinary treatment may be used in interactive sessions
only with the approval of the attending veterinarian.
(4) The ratio of human participants to cetaceans shall not exceed
3:1. The ratio of human participants to attendants or other authorized
SWTD personnel (i.e., head trainer/behaviorist or trainer/supervising
attendant) shall not exceed 3:1.
(5) Prior to participating in an SWTD interactive session, members
of the public shall be provided with oral and written rules and
instructions for the session, to include the telephone and FAX numbers
for APHIS, Animal Care, for reporting injuries or complaints. Members
of the public shall agree, in writing, to abide by the rules and
instructions before being allowed to participate in the session. Any
participant who fails to follow the rules or instructions shall be
removed from the session by the facility.
[[Page 47150]]
(6) All interactive sessions shall have at least two attendants or
other authorized SWTD personnel (i.e., head trainer/behaviorist or
trainer/supervising attendant). At least one attendant shall be
positioned out of the water. One or more attendants or other authorized
SWTD personnel may be positioned in the water. If a facility has more
than two incidents during interactive sessions within a year's time
span that have been dangerous or harmful to either a cetacean or a
human, APHIS, in consultation with the head trainer/behaviorist, will
determine if changes in attendant positions are needed.
(7) All SWTD programs shall limit interaction between cetaceans and
humans so that the interaction does not harm the cetaceans, does not
remove the element of choice from the cetaceans by actions such as, but
not limited to, recalling the animal from the sanctuary area, and does
not elicit unsatisfactory, undesirable, or unsafe behaviors from the
cetaceans. All SWTD programs shall prohibit grasping or holding of the
cetacean's body, unless under the direct and explicit instruction of an
attendant eliciting a specific cetacean behavior, and shall prevent the
chasing or other harassment of the cetaceans.
(8) In cases where cetaceans used in an interactive session exhibit
unsatisfactory, undesirable, or unsafe behaviors, including, but not
limited to, charging, biting, mouthing, or sexual contact with humans,
such cetaceans shall either be removed from the interactive area or the
session shall be terminated. Written criteria shall be developed by
each SWTD program, and shall be submitted to and approved by APHIS
11 regarding conditions and procedures for maintaining
compliance with paragraph (e)(4) of this section; for the termination
of a session when removal of a cetacean is not possible; and regarding
criteria and protocols for handling program animal(s) exhibiting
unsatisfactory, undesirable, or unsafe behaviors, including retraining
time and techniques, and removal from the program and/or facility, if
appropriate. The head trainer/behaviorist shall determine when
operations will be terminated, and when they may resume. In the absence
of the head trainer/behaviorist, the determination to terminate a
session shall be made by the trainer/supervising attendant. Only the
head trainer/behaviorist may determine when a session may be resumed.
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\11\ Send to Administrator, c/o Animal and Plant Health
Inspection Service, Animal Care, 4700 River Road Unit 84, Riverdale,
Maryland 20737-1234.
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(f) Recordkeeping. (1) Each facility shall provide APHIS
12 with a description of its program at least 30 days prior
to initiation of the program, or in the case of any program in place
before September 4, 1998, not later than October 5, 1998. The
description shall include at least the following:
---------------------------------------------------------------------------
\12\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------
(i) Identification of each cetacean in the program, by means of
name and/or number, sex, age, and any other means the Administrator
determines to be necessary to adequately identify the cetacean;
(ii) A description of the educational content and agenda of planned
interactive sessions, and the anticipated average and maximum frequency
and duration of encounters per cetacean per day;
(iii) The content and method of pre-encounter orientation, rules,
and instructions, including restrictions on types of physical contact
with the cetaceans;
(iv) A description of the SWTD facility, including the primary
enclosure and other SWTD animal housing or holding enclosures at the
facility;
(v) A description of the training, including actual or expected
number of hours each cetacean has undergone or will undergo prior to
participation in the program;
(vi) The resume of the licensee and/or manager, the head trainer/
behaviorist, the trainer/supervising attendant, any other attendants,
and the attending veterinarian;
(vii) The current behavior patterns and health of each cetacean, to
be assessed and submitted by the attending veterinarian;
(viii) For facilities that employ a part-time attending
veterinarian or consultant arrangements, a written program of
veterinary care (APHIS form 7002), including protocols and schedules of
professional visits; and
(ix) A detailed description of the monitoring program to be used to
detect and identify changes in the behavior and health of the
cetaceans.
(2) All SWTD programs shall comply in all respects with the
regulations and standards set forth in parts 2 and 3 of this
subchapter.
(3) Individual animal veterinary records, including all
examinations, laboratory reports, treatments, and necropsy reports
shall be kept at the SWTD site for at least 3 years and shall be made
available to an APHIS official upon request during inspection.
(4) The following records shall be kept at the SWTD site for at
least 3 years and shall be made available to an APHIS official upon
request during inspection:
(i) Individual cetacean feeding records; and
(ii) Individual cetacean behavioral records.
(5) The following reports shall be kept at the SWTD site for at
least 3 years and shall be made available to an APHIS official upon
request during inspection:
(i) Statistical summaries of the number of minutes per day that
each animal participated in an interactive session;
(ii) A statistical summary of the number of human participants per
month in the SWTD program; and
(6) A description of any changes made in the SWTD program, which
shall be submitted to APHIS 13 on a semi-annual basis.
---------------------------------------------------------------------------
\13\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------
(7) All incidents resulting in injury to either cetaceans or humans
participating in an interactive session, which shall be reported to
APHIS within 24 hours of the incident.14 Within 7 days of
any such incident, a written report shall be submitted to the
Administrator.15 The report shall provide a detailed
description of the incident and shall establish a plan of action for
the prevention of further occurrences.
---------------------------------------------------------------------------
\14\ Telephone numbers for APHIS, Animal Care, regional offices
can be found in local telephone books.
\15\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------
(g) Veterinary care. (1) The attending veterinarian shall conduct
on-site evaluations of each cetacean at least once a month. The
evaluation shall include a visual inspection of the animal; examination
of the behavioral, feeding, and medical records of the animal; and a
discussion of each animal with an animal care staff member familiar
with the animal.
(2) The attending veterinarian shall observe an interactive swim
session at the SWTD site at least once each month.
(3) The attending veterinarian shall conduct a complete physical
examination of each cetacean at least once every 6 months. The
examination shall include a profile of the cetacean, including the
cetacean's identification (name and/or number, sex, and age),
weight,16 length, axillary girth, appetite, and behavior.
The attending veterinarian shall also conduct a general examination to
evaluate body condition, skin, eyes, mouth, blow hole and cardio-
[[Page 47151]]
respiratory system, genitalia, and feces (gastrointestinal status). The
examination shall also include a complete blood count and serum
chemistry analysis. Fecal and blow hole smears shall be obtained for
cytology and parasite evaluation.
---------------------------------------------------------------------------
\16\ Weight may be measured either by scale or calculated using
the following formulae:
Females: Natural log of body mass = -8.44 + 1.34(natural log of
girth) + 1.28(natural log of standard length).
Males: Natural log of body mass= -10.3 + 1.62(natural log of
girth) + 1.38(natural log of standard length).
---------------------------------------------------------------------------
(4) The attending veterinarian, during the monthly site visit,
shall record the nutritional and reproductive status of each cetacean
(i.e., whether in an active breeding program, pregnant, or nursing).
(5) The attending veterinarian shall examine water quality records
and provide a written assessment, to remain at the SWTD site for at
least 3 years, of the overall water quality during the preceding month.
Such records shall be made available to an APHIS official upon request
during inspection.
(6) In the event that a cetacean dies, complete necropsy results,
including all appropriate histopathology, shall be recorded in the
cetacean's individual file and shall be made available to APHIS
officials during facility inspections, or as requested by APHIS. The
necropsy shall be performed within 48 hours of the cetacean's death, by
a veterinarian experienced in marine mammal necropsies. If the necropsy
is not to be performed within 3 hours of the discovery of the
cetacean's death, the cetacean shall be refrigerated until necropsy.
Written results of the necropsy shall be available in the cetacean's
individual file within 7 days after death for gross pathology and
within 45 days after death for histopathology.
(Approved by the Office of Management and Budget under control
numbers 0579-0036 and 0579-0115)
Done in Washington, DC, this 31st day of August 1998.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-23789 Filed 9-3-98; 8:45 am]
BILLING CODE 3410-34-P
